Assessing just war theory

A. In Christian tradition, the ethics of warfare centers on just-war theory. Indeed, for many Christian ethicists, just-war theory is treated as the unquestioned frame of reference. 

To their credit, theologians like Augustine and Aquinas were attempting to put warfare on a moral footing. Does warfare suspend Christian ethics, or is it possible, under certain circumstances, to wage war without committing murder? 

A moral difficulty in war is that you are harming individuals who didn't harm you directly, or harm you at all. The harm and counter-harm operate at a more anonymous, aggregate level, where one group endangers another group, even if no particular member of the group endangers an individual on the other side. It's the ensemble action that's threatening.  

B. Let's consider some just-war criteria:

• Legitimate authority

This seems to  rule out vigilantism in principle. Yet war, if warranted, is self-defense at a corporate level. If the right of self-defense forms the basis for the right of national defense, then how can national defense require legitimate political authorization while self-defense does not? 

Why do you lose the right of self-defense at a corporal level absent legitimate political authorization? Why would the citizenry be at the mercy of magistrates to collectively exercise their right of self-defense? What if the magistrate fails in his duty to protect the populace? 

• Proportionality

i) Certainly there are countless examples, both real and hypothetical, where the scale of violence is wanton, sadistic, or pointless. Killing for killing's sake. Drawing no distinction between murder and legitimate defense. 

ii) Conversely, there are situations where use of overwhelming force saves innocent life in the long wrong. It shortens the conflict and may destroy the capacity of the aggressor to wage war for a generation or more. Using proportionate force frequently drags out the conflict. Moreover, it gives the aggressor an opportunity to regroup, buy time, and regenerate. 

A better criterion is the avoidance of gratuitous force, not disproportionate force. A level of violence that serves the purpose of curtailing destruction and deterring aggression. 

• Noncombatant immunity

i) Again, there are countless examples, both real and hypothetical, where indiscriminate killing is murder. 

ii) Conversely, there are situations where killing the innocent in time of war is a necessary evil. An unavoidable consequence of warfare, due to the fact that human beings are social creatures who live and work in community. Not to mention human shield situations where the aggressor deliberately locates military assets in population centers. 

iii) Put another way, it can be a choice between minimizing harm to innocents compared to minimizing harm to combatants. What about the duty to protect your comrades compared to your duty to protect the innocent? (Assuming that your comrades are on the right side of the conflict.) In many cases, combatants didn't voluntarily assume a risk; rather, circumstances force them into that situation. What makes killing noncombatants morally worse than killing just combatants? Isn't the more fundamental distinction between just and unjust combatants? 

A better criterion is the avoidance of gratuitous harm to the innocent. Where killing the innocent is a tragic but necessary side-effect of the legitimate exercise of national defense. Paradoxically, there are situations where the innocent are wronged even though it wasn't wrong harm them.

• Last resort (necessity)

That's reasonable up to a point, but what if that gives the aggressor time to play out the clock and build up its war machine while futile alternatives are pursued? The dilemma is that peaceful alternatives may be seen to be futile after the fact, but by then it may be too late to avoid a more devastating conflict or the loss of competitive advantage by the innocent party.  

• Reasonable prospects of success

i) Although that's a valid consideration, what about a war of national survival, where the country under attack has everything to lose if defeated? To take an illustration in miniature, what about the Warsaw uprising? That was futile, but were the doomed Jews supposed to acquiesce passively to their fate, giving up without a fight, considering what awaited them? Didn't they have a right to make the Nazis pay as high a price as possible for their aggression? Taking as many of the aggressors with them to the grave? 

ii) To take another comparison, if, at an individual level, you're life is threatened by an aggressor, like a mugger, house-burglar, or death squad run by drug cartels, are you obligated to relinquish your right of self-defense in case the odds of protecting yourself (or dependents) is slim to none? Do you have a duty to ask yourself whether you will prevail? Or do you have a right to resist the aggressor, even if he's likely to kill you either way? 

In that situation, why is the onus on the innocent party to calculate the odds of successful resistance? Why is the onus not on the aggressor to face the risk of death or harm to himself? If he wrongfully imperils you, should he not bear the responsibility of imperiling himself in the process? So in some cases the criterion is morally arbitrary. 

C. The immunity of noncombatants is typically qualified by the double effect principle. Especially in Catholic moral theology, this prohibits "evil" as a means to an end. Here's a partial exposition: 

There are four conditions to be satisfied before an act with both good and evil effects can be judged permissible:

1. The act intended by the agent must be at least permissible

2. The good effect of this act must follow from it at least as immediately as its evil effect.

3. The evil effect must itself not be intended.

With regard to (2), the point is that the evil effect must either be caused by the good effect or be caused directly by the act which also directly cases the good effect…What (2) rules out is using the evil outcome as a means to the good effect, since the ends do not justify the means…A "tactical bomber"  who intentionally bombs a military target while foreseeing that he will kill innocent civilians, in no way uses the deaths as a means either to his immediate objective (destroying the target) or to his ultimate objective (winning the war); rather, the civilian deaths are a foreseen side effect…The evil effect does in fact cause the good effect, but the tactical bomber did not mean for this to happen. The point to remember, however, is that DDE is not just a principle of retrospective justification, but mainly one of prior permissibility: It is designed as an action guiding method for judging what to do…A plausible presumption in action theory is that he who wills the end also wills the means. If you know that an evil effect will cause a good effect, then it is open to others to question whether you really do not intend to use the former as a means to the latter. Even more is this so if you know that the evil effect is the sole means to the good effect. DDE, then, is as much about moral psychology as it is about after-the-fact justification. David S. Oderberg, "The Doctrine of Double Effect," T. O'Connor & C. Sandis, eds. A Companion to the Philosophy of Action (Wiley-Blackwell 2012), 326.

The double effect principle has a grain of truth, but the Catholic formulation is dubious:

i) To say "evil" means is equivocal. It's necessary to distinguish between "evil" in the sense of doing harm and evil in the sense of doing wrong. To say that targeting the innocent is morally evil is circular. If the means is morally evil, then of course that's out of bounds. But to say the means (e.g. targeting the innocent) is morally evil begs the very question in dispute. What if there are extenuating circumstances that justify that action?

ii) Likewise, the principle overemphasizes intent. But the agent's state of mind can't be  the sole or sufficient condition to make an action right or wrong. Some actions are objectively wrong despite good intentions. For moral realism to be true, there must be situations where the moral status of the action is independent of the agent's motivations. Intent can be germane to assessing whether the action was blameworthy in reference to the agent. It's a criterion for assessing culpability due to culpable motivations. But that's distinct from whether the action is objectively right or wrong. Some actions are necessarily right or wrong. Both intentions and consequences are irrelevant. 

D. Another moral complication is that citizens may find themselves on the wrong side of the war through not fault of their own, because their leaders decided to wage an unjust war. So where does their duty lie? In some cases, subversive action is an option (e.g. French and Italian resistance movements). 

In many situations, citizens aren't fighting to advance the strategic aims of their political leaders, but to protect their lives and livelihood once their leaders thrust them into an unjust conflict to which they never consented. They have a different cause than the political establishment. The question is where their duty lies given the conflict, regardless of how that arose. They haven't forfeited the right of self-defense just because their political leaders are in the wrong. The state can't abrogate that right.