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II

Is Pre-EmptiveWar Wrong?

Is Pre-EmptiveWar Wrong?

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Phillips’ Central Claim• On the principle that just war requires both justice in going to

war (jus ad bellum) and justice in waging war (jus in bello):

Robert Phillips: “Just War Theory ”

The killing of enemy combatants is justifiable on certain conditions.

The collateral deaths of innocent non-combatants is justifiable on certain conditions provided their deaths are not the objective.

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Bellum Justum (Just War)Just war requires both:

• Jus ad bellum (Justice in going to war); and• Jus in bello (Justice in waging war).

There can be cases of jus ad bellum without jus in bello, and vice versa.

• Entering a war justly, and waging it unjustly. • Entering a war unjustly, but waging it justly.

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Jus ad Bellum (Justice in Going to War)

I. The Last Resort.II. Declared by legitimate authority.III. Morally Justifiable.

For an act of going to war to be just, it must be:

A. Defense against aggression.B. Correction of an injustice that has gone uncorrected

by legitimate authority “in another place”.C. Reestablishment of a social order which will distribute

justice. D. Undertaken with the intention of bringing about peace.

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Jus in Bello (Justice Waging War)

I. Proportionality: The quantity of force employed or threatened must always be morally proportionate to the end being sought in war.

II. Discrimination: Force must never be applied in such a way as to make non-combatants and innocent persons the intentional objects of attack. The only appropriate targets in war are combatants.

For an act of waging war to be just, there must be:

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Jus in Bello (Justice Waging War)II. Discrimination

A. The Principle of Double Effect: In a situation where the use of force can be foreseen to have actual or probable multiple effects, some of which are evil, culpability does not attach to the agent if the following conditions are met:

1. The action must carry the intention to produce morally good consequences.

2. The evil effects are not intended as ends in themselves or as means to other ends, good or evil.

3. The permission of collateral evil must be justified by considerations of proportionate moral weight.

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Jus in Bello (Justice Waging War)What are the potentially good consequences of waging war?

• Defense against aggression.• Correction of an injustice that has gone uncorrected by

legitimate authority “in another place”. • Reestablishment of a social order which will distribute

justice. • Bringing about peace.

(From Principle of jus ad bellum)

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Jus in Bello (Justice Waging War)Rarely are the good consequences of waging war not accompanied by some evil consequences.

What are the potentially evil consequences of waging war?

• Scaring innocent citizens.• Killing innocent citizens.• Social upheaval.• Destruction of private property.• Destruction of historical property.

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Army Colonel Thought ExperimentConsider a colonel who calls in the order to bomb a civilian area where insurgents are hiding.

• According to the Principle of Double Effect inherent in Jus in Bello, how can the colonel avoid culpability for ensuing evil ends?

• Assume the colonel’s goal is to remove insurgents from the area so as to improve the lives of citizens. Re: Condition 1: Killing the innocents is not the

colonel’s intention. Re: Condition 2: The colonel doesn’t kill the innocents,

say, to break the morale of the soldiers, so as to end the war.

Re: Condition 3: Presumably, the proportional moral weight is considerable.

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Killing Enemy Combatants• “If force is ever to be morally justified, its employment must

be against a target other than a person as such. One must not be directly seeking the death of another human being either as such or as means to some further end.” (475)

• Here, Phillips appeals to something like Condition 2 of the Principle of Double Effect: It’s wrong to kill an enemy combatant so that I can live.

It’s evil for a person to be killed even if that person is an enemy soldier.

(We might apply the same reasoning to non-war situations.)

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Killing Enemy Combatants• So how can it ever be morally justified for a soldier to kill

an enemy combatant?

Would the soldier not be directly seeking the death of the enemy, e.g., as a means to self-defense or victory?

• Phillips’ answer (475): In order for a soldier’s killing an enemy combatant to be morally justified, the soldier's intention must be to restrain the combatant, not to destroy the man. The intention is to restrain the combatant. How might we plausibly restrain a combatant without

killing the person? Wouldn’t the soldier be directly seeking the death of

the enemy, say, as a means to self-defense or to victory?

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Possible ObjectionUtilitarian Perspective: There is no morally relevant difference between killing in order to restrain a combatant and killing in order to destroy him.

• The end result of each act is the same.• Smith & Jones Thought Experiment…

• “A corpse lies before both Smith and Jones—this is the brute, ultimate fact which no amount of “intentional” redescription can alter.” (475)

• There is no moral difference here.

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Phillips’ ReplyWe can see a morally relevant difference if we think about the moral basis of the practice of taking prisoners.

• “[F]ailure to take account of intention means that we are unable to make the difference between doing x in order that y shall result and doing x knowing that y will result.” (476)

• Jones does x knowing that y willresult.

• Smith does x in order that y willresult.

• “The crucial difference between Smithand Jones is that the latter is logicallycommitted to behaving differentlytoward those enemy soldiers whohave removed themselves from therole of combatant than is hiscompanion Smith.” (476)

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Phillips’ Reply• If the enemy surrendered, Jones’s intentions would be

fulfilled; Smith’s would not.• When intentions are to restrain as a means of preservation, it

seems Jones will restrain whenever possible.• If the enemy surrenders, he is no

longer a combatant.• “A combatant may change his

status by reverting to anoncombatant role, but if herefuses to do so, then muchof the responsibility for whathappens rests with him.” (477)

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Phillips’ Reply• Force must be directed against the combatant and not

against the man.• For Jones, it may be the case that the only way to restrain the

combatant is to kill the man.• “[I]n directing an act of force against an enemy combatant

there should be no intention to kill the person, yet in the case of the aggressor there is an important sensein which he may be said to bring his owndeath upon himself.” (477)

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Conclusions1. In a justified war combatants are the objects of attack by

other combatants.

• Use of force is directed toward incapacitation and not toward killing.

• Combatant deaths may be foreseen, but this is compatible with the intention to incapacitate.

2. Noncombatant immunity is presupposed.• Noncombatant deaths may be foreseen but may also be

regarded as collateral damage if they occur in the context of a justified war.