Is the Jus ad Bellum/Jus in Bello distinction a reliable guide in thinking about the moral rules of war?

This essay will explain the Jus ad Bellum (JaB)/Jus in Bello (JiB) distinction and will explore whether the distinction can be a reliable guide in thinking about the moral rules of war. At the end, this essay will conclude that the JaB/JiB distinction is not a reliable guide to explore the moral rules of war. The next paragraphs will first have a brief description of the alternative views on war ethics, the Pacifist, and the Realist view, to explore what is being denied by the position (Pike, 2014, p.17). Then will put the frame of Just War Tradition (which will be explained in later paragraphs) to the JaB/JiB distinction, before evaluating its reliability. Within the philosophical discourse regarding the justification of killing humans during war, philosophers had to come up with reasons why we tent to treat soldiers as heroes, rather than murderers. Killing is against most moral setting of rules (Pike, 2014, p.13), thus war needs to justify why and who is permissible to die during battles. The discrimination between civilians and combatants will be a recurrent theme of this topic.

Pacifists argue that killing cannot be justified, under any circumstances, thus any war should be avoided at any cost (Pike, 2014, p.24). Pacifists must convince us that their good intentions are ‘better’ than ours. ‘Everyone thinks peace is a good idea, but not everyone is a Pacifist’ (Pike, 2014, p.24). Additionally, Frowe believes that the Pacifist option might allow a lot of unjust killing to take place (The Open University, 2014), for example by not protecting their nation from an invader. Pacifism appears to be the ideal goal yet fails to provide us with the way to get there, and can be used to justify as many killings as the other theories on war morality.

Realists, on the other hand, do not try to justify any killings at war at all. They believe moral justification and moral rules do not apply at war, and that trying to find the moral rules of war is a category mistake, like trying to find the colour of the days of the week (Pike, 2014, p.19). Descriptive Realism appeals to the Kantian principle of ‘ought’ implies ‘can’ (Pike, 2014, p.21). During war time soldiers face situations that do not allow them space to apply moral rules. They must choose between their life and the opponent’s life. It appears like Realism fails to consider the ‘responsible human agents at the core of warfare’ (Pike, 2014, p.22), and it fails to explain why we take people responsible for murder in peace time, yet the soldiers killing in war, we announce heroes.

Just war theory is a philosophical view that accepts killing in war (Pike, 2014, p.13), unlike the Pacifist, however, does not see war as a place that moral rules cannot be applied, unlike the Realist. Just war theory provides a set of requirements for a war to fulfil to be considered justified; thus, the name: just war theory. Different philosophers have different views about who and why is reliable to be killed during war. Within the just war theory there is the Just War Tradition; a long historical tradition, that started as a moral guide for kings on which kind of warfare the church would not contempt and would consider justified (Pike, 2014, p.11). Throughout the centuries, Just War Tradition had an enormous influence on the laws covering international conflict, and today it has been encoded in the rules of war at the Geneva and the Hague Conventions (Pike, 2014, p.12). The core idea behind Just War Tradition—that is questioned by some just war theorist—is the discrimination between the sets of conditions that politicians need to fulfil before they go to war, and the sets of conditions that the combatants need to fulfil during the contact of war. This is the Jus ad Bellum/Jus in Bello conditions, from the Latin word Bellum/Bello for ‘war’, and the word Jus that refers to ‘justice’ (Pike, 2014, p.11).

Jus ad Bellum ('ad’ means ‘to’ in Latin) is a set of six rules that usually applies to Statemen and politicians, that they need to take into consideration before they decide to go to war (Pike, 2014, p.12). These are, the requirement the war to be declared by a legitimate authority, the cause of war to be just and with the right intentions, the war to fulfil the condition of proportionality (it does not create more mischief than it prevents), that the war has prospects of success, and it is the last resort (war is a better alternative to peace in the current situation). Jus in Bello on the other hand, is referred to the two rules that govern the conduct of war itself and are expected to be followed by combatants in war (Pike, 2014, p.12). That is the condition of proportionality and the principal of non-combatant immunity. We see here again the distinction between civilians and combatants.

Another important distinction is the dominant view that separates JaB from JiB conditions. This distinction allows for the possibility of a war that meets the JiB conditions, by combatants during the war, but fails to meet the JaB conditions, by the ones that waged the war, and vice versa. The JaB/JiB conditions provide a guide, and the theoretical possibility, for both sides to follow the international laws and be able to claim that they are fighting a just war. Nevertheless, in the real world, even the possibility of a war that is just on both sides is contentious (Pike, 2014, p.14). In that case, we should expect at least one side to have combatants fighting an unjust war, at least, regarding the JaB conditions. By distinguishing the JaB from the JiB conditions, combatants are given the opportunity to fight and unjust war justly (Walzer, cited in Pike, 2014, p.129), taking the responsibility of JaB conditions off the soldier’s shoulder. As Shakespeare illustrates (Walzer, cited in Pike, 2014, p.130), the common belief regarding the JaB/JiB distinction is that soldiers can safely say that: ‘We know enough if we know we are the king’s men. Our obedience to the king wipes the crime of it out of us’. This establishes the basis for what is called: Moral Equality of Combatants (MEC) (Pike, 2014, p.40).

The MEC provides the soldiers on both sides equal permission to kill each other (Pike, 2014, p.44), and gives an easy-to-follow answer to the underlying philosophical question of war ethics: Who is liable to be killed? (Pike, 2014, p.69). Combatants, on both sides, are equally liable to be killed, and have equal right to kill combatants from the opposite side. The MEC goes hand in hand with the Non-Combatant Immunity of the JiB conditions and is the third component of the Just War Tradition (Pike, 2014, p.39). It is also the key for the justification of the distinction between JaB and JiB. If the distinction is reliable then the MEC is valid. If not, then Combatants on the unjust side cannot ‘wash their hands off’ the injustice of their war, they are not morally equals to their opponents, and they can’t justifiably kill them, if the opposition’s side meets the criteria for a just war. According to this, the MEC is interrelated with the justification of the distinction between JaB and JiB. If we prove that the MEC is not valid, then the distinction between JaB and JiB cannot stand, because if unjust combatants are not morally equals with their just opponents, then they need to share responsibility with their political leaders for keeping the JaB conditions. This is the revisionist, more recent philosophical account (Pike, 2014, p.48). In that case, the distinction between JaB and JiB cannot stand, thus cannot be a reliable guide in thinking about the moral rules of war. Pike (Pike, 2014, p.60) has a list of arguments for the Moral Equality of Combatants. If the arguments are valid, then the MEC is valid, and the distinction between JaB and JiB can be a reliable guide in thinking about the moral rules of war.

The first in Pike’s list for the MEC is the argument for Material Non-Innocence of the Just combatants. Walzer argues, as the Just War Tradition, that non-just combatants have the right to kill their opponents—whether just or unjust—if they keep the JiB conditions. Walzer uses the argument of self-defence, one that works even outside of the war morality, to justify the morality of the war. The opponent has ‘allowed himself to become a dangerous man’ (Walzer, cited in Pike, 2014, p.45), thus he poses a personal threat to the unjust combatant. Thus, he has the right to defend himself, and he does not need to ask himself if the war he is fighting meets the JaB conditions. If he keeps the JiB, then he is morally equal (and equally permitted) to kill his opponent.

This idea is successfully criticised by McMahan, who points out that unjust opponents cannot possible be justified in killing just combatants, because they did not do anything wrong to lose their right not to be killed. They only defend their country and their loved ones from the unjust war. The self-defence argument is used here against the MEC. The idea is that when one is attacked does not loose their right not to be killed because they defended themselves (McMahan, cited in Pike, 2014, p.135). The attacker cannot claim he now has the right to kill them, because they are resisting attack and thus have become material non-innocent, posing now a threat to the attacker. There is no reason why it should be any different in war. In that sense, the just combatants did not lose their right not to be killed, they share immunity with non-combatants, thus there is no Moral Equality of Combatants. Jeff McMahan demolishes also the second argument, that of Voluntariness. According to the Moral Equality argumentation, both sides Combatants volunteer to go to war, thus give up their right not to be killed. McMahan believes that in war both sides cannot possibly fight voluntarily, since the just side, did not really have a choice but to resist the subjugators (The Open University, 2014.)

The third is the Epistemological argument, which McMahan failed to demolish. That is the observation that soldiers cannot be expected to be informed and to have understood international affairs efficiently enough to make a judgment on whether the war they have been asked to participate is a Just war or not (Pike, 2014, p.55). McMahan rightly points out that here we have two different moral questions: ‘whether we act in a way for which we are or are not blameworthy and whether we act in a way that is morally impermeable or morally permissible.’ If A offers to B a drink that contains poison, but A was not aware of that, then A is not blameworthy, nevertheless, everyone agrees that the act of poisoning is blameworthy. For that reason, McMahan agrees that ‘the unjust combatant is excused’ (McMahan, cited in Pike, 2014, p.55-56). Yet, he cannot realy claim to be morally equal.

The last argument is that of the Protection of Non-Combatants on the unjust side. This can decimate the idea of Non-Combatant Immunity. Walzer argues supporting the dominant idea of Supreme Emergency. That gives to a nation state that is fighting according to the JaB the justification to target civilians of the opposite unjust side, in conditions of Supreme Emergency (Pike, 2014, p.102). This violates the second JiB condition that, as we saw, is the basis of the MEC, that is the basis of the JaB/JiB distinction. This makes the Just War Tradition to be self-contradictory. It does not accept the targeting of non-combatants, but sometimes it does accept precisely that.

According to this analysis, JaB/JiB distinction cannot be a reliable guide in thinking about the moral rules of war. This essay established that the distinction is based on the MEC. However, the only of the MEC arguments that was not demolished was the Epistemological argument, which still did not provide to the unjust combatants the moral equality with the ones on the just side, it only gave them the excusability of ignorance (Pike, 2014, p.56). Thus, this essay concludes that the moral theory behind the JaB/JiB distinction is inconsistent, and thus the distinction cannot be valid (Pike, 2014, p.106) and cannot be used as a reliable guide in thinking about the moral rules of war.

Bibliography:

Pike, J., (2014,) War A333 Book 1, Milton Keynes, The Open University

The Open University, (2014,) ‘Frowe on non-combatant immunity’ [Audio recording,] A333 Key Questions in Philosophy. Available at: https://learn2live-s3bucket.s3.eu-west-2.amazonaws.com/b7/e2/b7e25768c361f67b3de1265a95d1812a239646ac?response-content-disposition=inline%3B%20filename%3D%22a333_2014j_b2_aud010.mp3%22&response-content-type=audio%2Fmp3&X-Amz-Content-Sha256=UNSIGNED-PAYLOAD&X-Amz-Algorithm=AWS4-HMAC-SHA256&X-Amz-Credential=AKIA4IEL74JPEDP2AZKT%2F20221208%2Feu-west-2%2Fs3%2Faws4_request&X-Amz-Date=20221208T114718Z&X-Amz-SignedHeaders=host&X-Amz-Expires=21600&X-Amz-Signature=a0acfc996ad12003b41b810ee6ba1e1f183c1039f83dff9abe0ebf87e0acaa81 (Accessed 23 October 2022.)

The Open University, (2014,) ‘McMahan against the moral equality of combatants’ A333 Key Questions in Philosophy. Available at: https://learn2live-s3bucket.s3.eu-west-2.amazonaws.com/f1/ab/f1ab8360aa5cd335c312b9d1e5cc709dee06bb95?response-content-disposition=inline%3B%20filename%3D%22a333_2014j_b2_aud009.mp3%22&response-content-type=audio%2Fmp3&X-Amz-Content-Sha256=UNSIGNED-PAYLOAD&X-Amz-Algorithm=AWS4-HMAC-SHA256&X-Amz-Credential=AKIA4IEL74JPEDP2AZKT%2F20221208%2Feu-west-2%2Fs3%2Faws4_request&X-Amz-Date=20221208T115053Z&X-Amz-SignedHeaders=host&X-Amz-Expires=21599&X-Amz-Signature=95c3deb60a41e2146b344ad851ea84358d305667352af36a494185fd0aa7a152 (Accessed 20 October 2022.)