Philosophy and the Laws of Armed Conflict

David Lefkowitz’s Philosophy and International Law is an ambitious, thought-provoking, and didactic examination of many key jurisprudential, political, and ethical issues at the core of the international legal system. Its title captures well not only the overall theme of the book (you would have guessed that much), but also its emphasis: it is a philosophical inquiry about international law. It is therefore concerned neither with the underlying normative or political questions (e.g, the ethics of migration), nor with doctrinal or even theoretical debates in the law (e.g., the legal status of the “unwilling or unable” standard). Rather Lefkowitz uses philosophical analysis to shed light on many conceptual and normative issues that inhabit the international legal system, including its legitimacy, interpretation, and enforcement, but also human rights, crimes against humanity, secession, international economic law, and the laws of armed conflict. The book does a fantastic job by combining a wide breadth of themes with rigour, depth, and precision. This is in itself a tremendous achievement.

In this post I concentrate on the book’s discussion on philosophy and the laws of armed conflict or international humanitarian law (hereinafter, LOAC). The philosophical debate on war has been among the most vibrant and prolific ones in normative analytical philosophy over the last few decades. It can be standardly, albeit if a bit simplistically, portrayed as a contention between two main positions: the orthodox and the revisionists. One of the main points of contention between the two camps is whether belligerents fighting a just war are morally equal to those fighting on the unjust side. Orthodox theorists such as Michael Walzer argue that by threatening each other soldiers on all sides forfeit their right not to be attacked and therefore become liable to being killed. Revisionists challenge the claim that someone fighting with positive justification would forfeit her right not to be attacked. To illustrate this point, they often refer to interpersonal examples: when a police officer uses force, even lethal force, to prevent a murder, she does not become liable to be killed by the murderer. Aggressors and defenders are thereby in morally asymmetrical positions. The fact that war involves a greater number of people with greater coordination among them, they suggest, does nothing to undermine this basic point. Accordingly, while morality imposes certain limitations on the use of force by just belligerents, it requires that unjust soldiers simply lay down their weapons and go home.

Lefkowitz is interested in a connected, albeit importantly distinct issue. Namely, he is concerned with what the morally best laws of armed conflict (LOAC) are. In particular, he focuses on the legal equality of belligerents, that is, on whether the law should treat belligerents on the ad bellum just and unjust sides symmetrically or asymmetrically. This issue is much more pressing for revisionists, who advocate a morality that is generally asymmetrical against the LOAC which are assumed to be generally symmetrical. He concentrates on three different arguments.

The first argument he examines is that advocated by Jeff McMahan. McMahan has influentially argued that the revisionist position that distinguishes just from unjust combatants captures the requirements of the “deep” morality of war. Yet international law ought not to mirror these “deep” moral considerations; it should rather operate as a symmetric code that applies across the board to both just and unjust belligerents. The reason for this is simple. Combatants on both sides will think they are justified in fighting. So if the LOAC are to guide their conduct, and restraint their behaviour, they must consist in rules that apply equally to all combatants and make no reference to the justice of their war (cited at 160). The legal equality between belligerents is thereby advocated on instrumental grounds as a way to secure greater conformity with “deep” moral considerations (which are in turn concerned with sparing those who are not liable).

The second argument Lefkowitz considers is advanced by David Rodin. Rodin is also part of the revisionist camp. However, unlike McMahan, he claims that international law ought to mirror “deep” moral principles and treat just and unjust combatants asymmetrically. Or better, it must not shy out of providing sanctions for those soldiers taking part in unjust wars. The reason for this is that the morally best LOAC should not only take into consideration the negative consequences of holding unjust combatants accountable for their immoral conduct. They should concentrate on the benefits of punishing those who take part in an unjust war as a way to reduce the total incidence of war “with commensurate benefits of justice and security” (at 168). Rodin ultimately defends a radical amendment to the existing LOAC.

Lefkowitz is appropriately skeptical about this broad suggestion. He suggests that amending the LOAC in this particular direction would have serious detrimental effects in terms of making conflicts longer (soldiers would keep on fighting to avoid punishment) and bloodier (since they will be punished for fighting anyways, they may as well ignore other legal restraints). It is therefore unclear that these legal rules would produce a net gain in justice and security. But Rodin is unmoved. In the absence of solid, decisive empirical evidence that proves such fatidic consequences, he continues to favour a principled argument about how the law should separate right from wrong conduct –“the law should not disregard the fact that fundamental moral rights impose constraints on the content of the law” (170).

The third response Lefkowitz examines, and the one he seemingly finds most attractive, is the one articulated by Janina Dill and Henry Shue. Dill/Shue advocate eschewing the concern for individual rights which is at the center of both McMahan and Rodin’s revisionist position. Instead, they favour embracing a humanitarian concern with just minimizing harm in war. That is, Dill and Shue assume that the LOAC seek to influence the conduct of individuals who have already decided to take part in an armed conflict. Accordingly, its main task should be to strike the best possible balance between limiting harm and securing compliance. If the law is not restrictive enough, it will condone levels of harm which are too great. But if it becomes unduly restrictive, it will ultimately fail to influence conduct, thereby leading to levels of harm which are too high. The legal equality between belligerents strikes this balance when complemented with the prohibition on directly targeting non-combatants.

Lefkowitz presents the debate between these main positions in all its complexity. He sets out the underlying assumptions of each of them, as well as their main strengths and weaknesses. The chapter makes for a fantastic read. My main disagreement is less with his careful treatment of the debate than with the terms of the debate itself. Elsewhere I have argued that these arguments pay insufficient attention to what we know about how the laws protect in war. Empirical research shows that the laws can reduce harm in war (even morally weighted harm) without necessarily advocating symmetrical rules. But here I want to raise a different line of argument. That is, I fear that these positions also pay insufficient attention to the more subtle way in which the LOAC are structured, in particular vis-à-vis the legal equality between belligerents. As a result of this, each of these arguments fails to adequately capture the richer, more granulated normative landscape that would make for the morally most sound LOAC, and at least one of its arguably key normative considerations.

In order to see this, we need first to clarify further how legal equality between belligerents works in international law. Simply put, the LOAC use combatant privilege to confer equal status upon belligerents. This privilege warrants participants in armed conflict a number of protections regarding questioning, conditions of internment, food, clothes, work, and authorizes verification by a third state of the treatment of those interned. But most importantly for our purposes it provides combatants with a legal protection against being legally sanctioned for taking part in war. Sometimes conceptualized as an immunity while others as a positive permission (e.g. Prieto Rudolphi, forthcoming), combatant privilege operates as a shield against prosecution for participating in war.

This protection is distributed in more complex and interesting ways than these three arguments acknowledge. State armed forces, for one, are typically considered entitled to combatant privilege unless they fail to comply with certain stipulated conditions (carry arms openly, wear a visible emblem, act under a unified command, and follow the LOAC). By contrast, members of non-state armed groups are generally not entitled to this legal protection, except when they are de facto organs of a state or -under certain readings of the existing laws- when they fight against colonial domination or racist regimes. In these latter cases, moreover, the LOAC relaxes the conditions of lawful combatancy it typically requires from state armed forces, demanding from insurgents, e.g., that they carry their weapons openly only during each military engagement and during such a time as he is visible to the adversary in a deployment preceding the attack. UN peacekeepers, in turn, are not only protected against legal sanctions for taking part in armed missions but they are also typically protected against being targeted. Child solders are often considered protected at least to the same extent as state combatants, or their responsibility is considered mitigated and them entitled to restorative justice measures. Finally, the law refuses legal privilege to mercenaries and spies, but accords it to those taking part in a levée en masse.

It is hard to accept that the law must either treat all these different participants symmetrically, or that it should only pay attention to the ultimate justice of their cause. By contrast, this granulated picture seemingly combines a sensibility to the impact of state authorities’ directives over individuals decision-making processes (the privilege generally conferred upon state armed forces), the manifest justice of the cause for which some belligerents fight (e.g., non-state actors fighting against racist or colonialist regimes, or individuals taking part in a levée en masse), the reduced moral and rational agency (child soldiers), and concerns with minimizing morally weighted harm (standard requirements to maintain the privilege of combatancy). This suggests that we perhaps need a more nuanced understanding of how to distribute combatant privilege (the law’s proxy for equality) among participants in war which goes beyond the justice of their cause (à la Rodin), the minimization of harm (à la Dill/Shue), or the need to improve compliance with “deep” moral principles (à la McMahan). In effect, we may still need to articulate a unifying argument that adequately accounts for full list of participants in war and their varied claims to take part in the armed conflict without risking being punished for it. Such would be, I believe, the morally best LOAC.