Abstract
Critics of non-uniformed ‘irregular’ warfare argue that it is unfair both to non-combatants and to enemy ‘regulars’. I dispute this view by outlining the ‘problem of in bello justice’, which concerns how the leaders of a people forced to fight a just war should distribute risks within their own population. In so far as all are the victims of aggression or unjust occupation, I argue, no citizens on the just side are morally liable to attack. But to benefit from the restraining effects of discrimination, some members must be rendered legally liable. Political leaders must therefore find the most appropriate distribution of the risk of harm: first, by deciding which and how many citizens to select as ‘combatants’; and second, by specifying how far to distance combatants from civilians. I identify four normative considerations that must be taken into account: each possible arrangement must (1) fulfil basic requirements of fairness domestically; then, between equally fair arrangements, leaders ought to determine which offers the most auspicious balance between (2) the goal of survival (of the society and as many of its members as possible) and (3) the goal of winning and, hence, eliminating the injustices that caused the war; finally (4) the arrangement should not be unfair to enemy combatants. On this basis, I argue that in spite of the increased risks it poses to civilians, limited ‘irregular’ warfare might be deployed legitimately against occupiers where using uniforms would render insurgents vulnerable to targeted assassination or arrest prior to actual combat.
Keywords
The question of using non-uniformed ‘irregular’ soldiers in wars of liberation has long been controversial among legal and moral theorists (Nabulsi, 1999). Recent critics have been especially worried by its tendency to exacerbate risks to civilians by causing the rates of unintended harm arising from enemy attacks to increase (Chiu, 2010, p. 55; Meisels, 2008, p. 91, pp. 104–8; Walzer, 2000, pp. 179–80; compare Roberts, 2008, pp. 948–9). In this article, I argue that a thorough treatment of the matter requires attention to a political dimension of war that has been obscured by the dominant moral and legal preoccupations of recent debate in just war theory. It comes to light when we ask how the leaders of a warring side should decide on matters affecting how the risk of harm is distributed within their own population.
I identify the parameters of the issue by analysing the role that wartime leaders play in determining how the principle of discrimination will apply to their citizens when they make two decisions: concerning, first, which of them and how many to designate ‘combatant’ and, second (at least in some instances), the degree of spatial separation and the type of visual distinction to interpose between the resulting categories of combatants and non-combatants. I call the issue as a whole the ‘problem of in bello justice’. This is distinct from the jus in bello as such (the general principles governing the conduct of war). Whereas the jus in bello specifies how combatants and non-combatants ought to be treated, the problem of in bello justice arises when we ask how the two categories ought to be produced, a question that each side must find a way to answer prior to combat (see Kinsella, 2005; 2006). At the same time, it raises a different question from that of the respective (de)merits of conscription and volunteer armies, though it may turn out to be relevant to addressing that issue (which is beyond the scope of the present article; see Rawls, 1999, p. 334). I will show how analysing the problem of in bello justice provides a basis for defending the limited use of irregular forces in wars against occupation.
Before proceeding with the argument, let me point out some simplifying assumptions that I make in my analysis and enter a caveat about the type of theory I offer. First, I assume that any war involves at least two fairly unified ‘sides’ and for the sake of neatness I sometimes refer to them as ‘peoples’ (to include nations, states, or any sub-state or sub-national community identified as a ‘party’ to war) and to their individual members as ‘citizens’ (i.e. irrespective of whether they are legally recognised as such, for instance, on a non-state side). Second, by ‘wartime leaders’ I mean the government in power at the time of war in the case of states or, in the case of non-state sides, the political leadership of a movement of resistance, revolution or national liberation. I assume in the latter case that there is a single legitimate leadership and set aside the problem (which is often very important) of rival groups vying to lead the same movement. 1 Third, my argument builds on the broadly liberal premises shared by ‘revisionist’ just war theorists who follow Jeff McMahan in assuming that violence is morally justified (as distinct from legally permissible or impunible) only where either its targets have rendered themselves liable to attack by contributing in a significant way to a wrongful threat of harm or, if foreseeable collateral harms are unavoidable, where considerations of the lesser evil justify a proportionate infringement of rights. But as I will indicate, inter alia, the case I present for the significance of ‘in bello justice’ is also relevant to ‘traditional’ accounts of the just war. I also assume without argument that ‘just cause’ for war arises only in the face of prior or imminent aggression, unjust occupation (including colonisation) or systematic and severe violations of human rights. Some are sceptical of the very idea of a war justified or regulated according to (broadly) liberal norms; I acknowledge without further comment at this point that those who do not share the theoretical commitment to liberal conceptions of justice, human rights and (liberal) fairness or do not recognise their relevance to armed conflict may find the argument unpersuasive. Having said that, my claims about the necessary indeterminacy of some dimensions of just war theory indicate ways in which it has to be more open than its critics sometimes assume to variations in the normative priorities of the different peoples or cultures engaging in warfare. 2
In the second section, I pursue a precise specification of the problem of in bello justice by showing that none of the various schools of thought in contemporary just war theory offer a full account of how the principle of discrimination provides action guidance to participants in war. I argue that for a people fighting for a just cause there is neither a natural moral basis for selecting ‘combatants’ from among its own citizens (since, as victims of aggression or unjust occupation none of its citizens are morally liable to attack) nor a determinate basis in international law. But in order to benefit from the restraints imposed by the Law of Armed Conflict (LOAC), it is necessary for its leaders to trade off the legal immunity from attack of some citizens in order to protect others. Since the hazards of the war on the just side (by hypothesis) constitute a moral injustice no matter which citizens face them it is incumbent upon their leaders to find the most just way to distribute them. I argue that the same side could legitimately consider distributing the risks and burdens of war across its members in a range of different ways by choosing combatants in larger or smaller numbers or, in some types of war, by reducing or expanding the separation between combatants and civilians. In the third section, I turn to the principles that ought to guide leaders in their choice of distribution. I argue that they must first limit themselves to considering only arrangements that are consistent with basic requirements of fairness domestically. Where there is more than one such arrangement, then the choice should be guided by the question of which offers the best available balance between two goals: first, the goal of bare peace, meaning the survival of the society and as many of its members as possible during the course of the war; and, second, the goal of just peace, meaning the elimination of those injustices that made it necessary to fight. Finally, as I discuss in more detail in the fourth section, in a conflict governed by the LOAC, the arrangement should not impose unfair disadvantages on enemy combatants.
There is scope in any war for deliberating about policies affecting the level and type of exposure to violence that a society and its members will suffer. But in the fourth section I return to the question of irregular war in particular. According to the 1977 First Additional Protocol to the Geneva Conventions, it is permissible to deploy non-uniformed, irregular forces in wars directed against ‘colonial domination and alien occupation and against racist régimes in the exercise of [the] right of self-determination’ (Article 1 (3)). The moral validity of the Protocol is widely contested, however, commonly on the basis that it is unfair both to non-combatants and to enemy regulars (Meisels, 2008, pp. 104–8; compare Fletcher, 2002, p. 108; also Chiu, 2010, p. 49, p. 55; Dinstein, 2004, p. 46; Roberts, 1985–6, p. 129; Solis, 2010, p. 132). I draw on the analysis in the second and third sections to argue that forgoing the use of uniforms might sometimes be the most just way to distribute risks for a people forced by the injustices of others to fight a liberation war. Moreover, I argue that where it is the only means of avoiding the assassination or arrest of insurgents in advance of combat, the use of irregulars permitted in the First Protocol may help to restore fairness in applying the LOAC between opposing combatants.
Discrimination and the Legal Liability of Just Combatants
The principle of discrimination is meant to guide the actions of soldiers in war by indicating which individuals they may attack deliberately and which they must regard as immune. It cannot function, however, until it is given a definite content by the states or insurgent peoples that are parties to a given conflict. This content, I argue, is subject to normative considerations that are distinct from both the LOAC as such and what McMahan calls the ‘deep morality’ of war. They constitute a distinctively political dimension of justice in war that mediates between the claims of morality and law (and between the jus ad bellum and the jus in bello).
From a Two-Tiered to a Three-Tiered Theory
To substantiate this argument, let us begin by asking what the just war principle of ‘discrimination’ requires of participants in war. However interpreted, it is clear that discrimination condenses two propositions. It is often defined with a much stronger emphasis on the first, the one that prohibits soldiers from intentionally attacking those who are not legitimate targets; this is its restrictive force. But discrimination also expresses a permission, allowing at least some soldiers to attack legitimate targets directly and intentionally (Hurka, 2005, p. 36; McMahan, 2004, p. 718; 2009, p. 204; Zohar, 1993, p. 606).
In the theory of the just war, the default position must be that everyone is immune from attack until a valid reason can be given for harming them (Walzer, 2000, p. 136, p. 145 n.). The major burden in any account of the principle of discrimination, therefore, is to explain the occurrence of liability rather than immunity: we have to ask, who is a ‘legitimate target’ in war and why (Walzer, 2000, p. 137)? Scholars are deeply divided on the issue. Broadly speaking, there are two approaches: first, an ‘asymmetric’, moral approach; and, second, the legal view, encapsulated in the doctrine of combatant equality and defended on moral grounds in what is sometimes called the ‘Orthodox’ theory of the just war (McMahan's term in 2005, p. 10; Walzer, 2000, pp. 34–44; compare Benbaji, 2009).
The first view arises from considerations purely of individual responsibility and liability to harm (McMahan, 2004; 2009; see also Coady, 2008b, ch. 6; Fabre, 2009; McPherson, 2004; Primoratz, 2002; Rodin, 2002). This perspective yields a result that is both complex and, in principle, highly determinate. Those responsible ‘for an objectively unjust threat of harm’ are liable to be attacked when doing so is a necessary and proportionate means of preventing or remedying that harm (McMahan, 2009, p. 35; compare Fabre, 2009, p. 37). Those who are not responsible for an injustice are not liable to be harmed intentionally in addressing its effects. Discrimination does not, in this perspective, distinguish between combatants and non-combatants but, in a qualified sense, between the guilty and the innocent. As McMahan's analysis shows, however, this does not necessarily lead to a straightforwardly asymmetric war ethic in which unjust warriors are the legitimate targets of force and all others are immune (civilians on either side, neutrals and just warriors). Civilians on the unjust side are sometimes responsible to a higher degree than the soldiers they send into the battlefield to fight on their behalf (Fabre, 2009, pp. 49–50, p. 63; McMahan, 2009, ch. 5; Primoratz, 2002, pp. 239–40). Moreover, if unjust warriors engage in fighting as a result of such extenuating circumstances as coercion or if they have truly been blinded by non-culpable ignorance or their leaders' propaganda, they might qualify as ‘innocent threats’. As such, they too could be immune or at least they might suffer less liability than the civilians who caused the war (McMahan, 2009, p. 195; Zohar, 1993, p. 615). On the just side, soldiers as well as civilians retain their moral immunity provided they do not engage in war crimes. But faced with ‘innocent’ unjust warriors, McMahan argues, just warriors might be obliged to expose themselves to higher levels of personal risk in order to minimise even military casualties on the enemy side (Hurka, 2008, p. 137; McMahan, 2009, pp. 192–8).
A ‘purist’ moral perspective (as Benbaji calls it [e.g. Benbaji, 2009]) would seek to give the principle of discrimination a highly determinate content and it would thereby offer very specific guidance to soldiers on how they ought to fight. But it would generally face enormous practical difficulties, not least of which is the fact that those who are morally (as distinct from legally) liable to attack are often indistinguishable among the wider population, whether of soldiers or of civilians (Fabre, 2009, p. 63; Lazar, 2010, p. 211; McMahan, 2009, p. 225; Waldron, 2010, pp. 93–5; Zohar, 1993, pp. 615–6). While highly determinate, therefore, the moral perspective is also likely to prove too nuanced to be useful as a source of practicable action-guiding principles for war in general.
The second (‘traditional’) approach is also the dominant one in international law: it distinguishes between those who are and those who are not engaged in combat, irrespective of the side for which they fight, and allocates the same privileges and liabilities to both. Not only is this view supported in the ‘Orthodox’ view on the morality of the just war, but even among theorists of moral asymmetry, many endorse it as the most suitable framework for the law of war at the present time on grounds of moral pragmatism (Coady, 2008a, p. 164; Hurka, 2008, p. 45; McMahan, 2008, pp. 27–8; 2009, p. 234). McMahan, for instance, argues that in the absence of a global judge competent to make timely and authoritative pronouncements under the jus ad bellum, the law of war cannot presently be altered in such a way as to reflect the philosophical insights of the deeper moral view directly. The ethics of war therefore have to be analysed on two normative levels, the purely moral and the legal (McMahan, 2008).
Whichever view one finds most persuasive, the same problem arises that I want to identify regarding discrimination as an action-guiding principle. Setting strict moral purism aside as at least presently impracticable, none of the remaining approaches – McMahan's two-level analysis, the traditional view or other variants of the traditional account such as Yitzhak Benbaji's – give a complete account of how the principle of discrimination can provide action guidance because none of them reflect on the important normative dimensions of the problem of selecting and marking out a group of individuals to put forward as legitimate targets in war.
I accept the argument that since it cannot be grounded directly in natural morality, the principle of discrimination at the heart of the jus in bello and the LOAC must be at least partly conventional in nature, constituting, in effect, a second level of analysis in addition to the ‘deep’ morality of war (Benbaji, 2009; McMahan, 2008; Waldron, 2010). But to offer meaningful practical guidance to soldiers, the principle needs a determinate content; that is, we need to be able to specify not only that some people are and some are not legitimate targets, but also which particular individuals will be put into which category on a given side and for the purposes of a given conflict. Analysis of the ‘deep’ morality of war is incapable of supplying this content. So given that on any non-purist argument (including McMahan's) we are usually to follow international law in practice (even where it is in tension with the level of basic morality [McMahan, 2008, s. 2.6.1]), there must be a third level at which abstract, formal principles are given concrete content and, hence, made practically meaningful. 3
The abstract nature of the legal principle of discrimination therefore leaves those who lead each warring side with an active role to play in giving it concrete meaning and practical significance. By deciding who will have which status and how the resulting class of combatants will conduct its relations with civilian life, they indicate to soldiers on the opposing side how to apply the principle of discrimination during the fighting and thus influence a factor important in determining how risk is distributed among their own citizens.
Just Warriors and the Loss of Immunity
I will refer to the issues arising from this need to decide who will bear the risks and burdens of war and how they will do so as ‘the problem of in bello justice’. Before turning to the question of how the political leaders of a warring side should address it, it is necessary to say something further about why the problem arises specifically for peoples with a reasonable claim to be fighting a just war. This, in turn, helps clarify exactly what is demanded of the leadership of a just side in formulating an appropriate conception of in bello justice.
On McMahan's two-tiered analysis, the fact that unjust warriors lose their normal immunities under the LOAC is relatively unproblematic since, by threatening unjust harms, most of them simultaneously forfeit their moral right not to be attacked. However, forfeiture cannot generally explain the same loss of rights by just warriors since the harms they threaten are presumed to be justified and therefore do not give rise to liability. Yet, like their unjust opponents, just warriors who fight for a state lose the right under the LOAC to expect their state's usual level of protection from harm. In fact, by putting them forward and designating them ‘legitimate targets’ the state actively aids and abets in their killing. Moreover, because the LOAC treats their deaths as impunible (Kutz, 2005, p. 150), just warriors lose a second moral right, the right to see their killers pursued by legitimate legal authorities and punished (usually by their own state) (Benbaji, 2009, p. 595; Locke, 1988, pp. 273–4; Simmons, 1993, p. 186). As Benbaji writes (2009, p. 600), ‘[s]tates equalize the legal status of soldiers by immunizing enemy soldiers from post bellum legal prosecution’. Just as importantly, non-combatants too lose this right or it is overridden if they are killed or otherwise harmed as the permissible side-effect of actions aimed by unjust warriors at military targets on the just side.
If the just warriors' liabilities under the LOAC cannot be accounted for in terms of rights forfeiture on moral grounds, then we have to find some other explanation. On Joel Feinberg's account, there are three different ways in which one can lose rights: ‘they can be (a) voluntarily given away or exchanged; (b) lost involuntarily through negligence or wrongdoing or (c) taken away by some other party’ (Simmons' synopsis in 1993, p. 46; Feinberg, 1978, pp. 110–4). Option (b) corresponds to forfeiture while (a) corresponds to waiving a right or, more strongly, its ‘alienation’. The third possibility (c) could take a number of different forms: rights might be taken away permanently; or they might be infringed, in which case they are recognised as valid in principle even when they are overridden by considerations of the lesser evil in practice; or, finally, they might be suspended, that is, taken away temporarily and for certain purposes but restored once the occasion for suspending them has passed.
Where citizens are recruited by means of conscription, then many of their usual peacetime rights may be seen as having been infringed, for example their rights of free movement, or free expression or privacy. In so far as the LOAC requires, furthermore, that the right of the just warrior to be protected from harm is taken away or overridden only for the duration of the war, we might consider using the term ‘suspension’. But the right to justice for those who are killed or harmed as a result of legally permitted actions by unjust warriors is lifted with permanent effect. For the sake of simplicity, I will refer below to this bundle of requirements imposed on individuals on the just side by the LOAC as a ‘prescription’ of rights, that is, a ‘limiting or restricting [of] another's right without that person's participation’ (Simmons, 1993, pp. 46–7). With forfeiture ruled out, the loss or truncation of the just warrior's rights must be the result of either alienation or prescription.
Citizens might volunteer for military service in the face of an unjust attack on their country or an unjust occupation and thereby waive or alienate their normal rights and protections. I assume, however, that alienation is of less present interest for three reasons: first, because if fully realised it would not pose the problem of in bello justice in its most acute form. If a sufficient number of competent individuals were to volunteer freely to fight in a given war, then the distribution of combatant liabilities could be regarded as legitimate on the basis of consent alone or at least as significantly less troubling from the point of justice than the liabilities suffered by conscripts (though leaders would still need to determine which and how many of the available volunteers to put forward for combat). The problem of in bello justice, by contrast, can be seen most clearly in circumstances where the recruitment of a sufficient number of able volunteers is impossible. Notice, however, that even if a just side recruited an army entirely of volunteers it would not make the killing of its warriors by their enemies justified. Thomas Hurka has argued that, by volunteering to fight, just warriors ‘freely gave up their right not to be killed in certain circumstances and so made their killing in those circumstances not unjust’ (Hurka, 2007, p. 210; compare Chiu, 2010, p. 52). My point, by contrast, is that it is the distribution of legal liabilities to (morally unjust) harm under the LOAC in such cases that is ‘not unjust’ rather than the unjust warriors' attempts to kill just warriors. Under such a distributive scheme, truly voluntary just warriors would still suffer moral injustice when attacked by their enemies even if they suffered none from their own side.
Second, it is also very rare to find an army recruited exclusively on the basis of voluntary alienation. Since the end of the Vietnam War, for instance, the US has drawn its combatants from a professional, volunteer army. But as many critics emphasise, its success in recruiting enough soldiers relies partly on a combination of material inducements and the relative poverty of those to whom they are offered (Massing, 2008, pp. 34–6; Simmons, 2001, p. 44, pp. 57–8). It seems likely, therefore, that in so far as they rely on forms of structural coercion to press individuals into military service, such cases run closer to prescription than to alienation and it is likely that most so-called ‘volunteer’ armies involve elements of both. 4 Third and probably most important, alienation cannot account for the fact that the killing of civilians is impunible when it occurs as a side-effect of legally permissible action by unjust warriors.
I will therefore concentrate primarily on the third way in which individuals might be understood to lose their rights for the purposes of just combatancy or as permissible civilian collateral damage; that is, through the prescription of their rights by the state or, in a war of national liberation, by the provisional government or political leadership. A conception of in bello justice based on prescription would see political leaders trying to decide how best to meet the demands of a war by seeking the most just distribution of risks and responsibilities possible within the community they represent and on this basis ordering individuals to enlist in a justified infringement, suspension or more durable prescription of ordinary rights (see McMahan, 2010, p. 349).
There is a second dimension to the problem of in bello justice whose relevance is specific to non-state liberation armies. In these cases, leaders might consider, in addition, the use of irregular methods of warfare, forgoing the use of uniformed soldiers in favour of unmarked guerrillas and deploying them in close proximity to civilians. In that case, the normative proposition they would have to justify is that an expanded prescription of rights can legitimately be imposed on their non-combatants too. Thus, in addition to seeing their right to punishment for (proportionate collateral) harms suffered being overridden, non-combatants would also suffer a further partial infringement of their normal right to protection from the harms of war as the decision to use irregulars caused an increase in the rate of collateral damage. I will discuss this possibility in more detail in the fourth section.
I now turn to the question of which normative principles in a liberal view ought to guide the leaders of a particular warring side in trying to determine the most suitable distribution of liabilities and risks in a just war.
Just Conceptions of Discrimination
From the point of view of justice as it relates to the domestic arrangements of political communities facing war, the problem is the following: how should a people draw the line to determine which of its citizens to expose to the hazards of war (and in what ways) and which to protect from them? I will argue that it has two dimensions: regarding, first, the justification for the particular way it decides to delineate the categories of combatant and non-combatant, hence specifying the principle of discrimination; and second, consultation with the people who will be affected by the policies proposed where possible, which I argue is necessary for their legitimacy.
Justified Conceptions of in Bello Justice
We assume, ex hypothesi, that the need to engage in any just war is a matter of grave urgency and that doing so is the only (or at least the most proportionate) means of trying to prevent or remedy injustice. Engagement in the war then necessarily imposes certain injustices on the just side: it is forced to send its citizens out to fight, sometimes coercively, knowing that some of them will die as a result, the victims of morally unjust killings; and it is compelled to subject itself to the LOAC, which obliges it to default on its duty both to protect them and to pursue justice for their deaths and for those of some civilians harmed collaterally. The LOAC opens up permissions to unjust warriors and, by the same token, imposes obligations on those they attack that are morally unjust.
My claim in the second section was that a community forced to engage in just war had to fill out the principles of the LOAC by delineating combatant and non-combatant groups within its own population. I will refer to a particular way of trying to construct these categories fairly and effectively as a ‘conception of in bello justice’. I now want to argue that, faced with a particular conflict, a just side might have to select from a set of several alternative but individually defensible conceptions; and that these might include options that involve higher levels of exposure to risk for non-combatants than are usual in regular, conventional war. Indeed, it might be that options of this kind are the only ones that could justifiably be implemented in some cases. Any of these might be capable of realising in its own way the abstract concept of discrimination and establishing a basis for operating within the LOAC. Leaving aside for now the question of fairness towards enemy soldiers (I turn to this in the fourth section), each alternative, I argue, must be evaluated according to its ability to achieve a suitable balance between three distinct considerations: (1) fairness domestically; (2) the value of survival (i.e. of the society and as many of its members as possible), which I will call the goal of bare peace; and (3) the value of justice as a goal of war, which we can call the goal of just peace. I will outline each in turn.
The first consideration demands that those burdens of war that are deemed necessary on reasonable grounds to win and to realise or defend the cause should be distributed within the society as equitably as possible. The workings of a particular conception of in bello justice have, to use Allen Buchanan's terms, ‘profound and enduring effects on individuals and groups’ but these ‘effects are for the most part neither chosen nor consented to by those affected’. Intuitively, therefore, in cases where a side has to recruit many of its soldiers or take decisions affecting the risk of collateral harm to civilians on a non-voluntary basis, it must seek to achieve ‘fairness of distributions of benefits and harms’ as far as humanly possible (Buchanan, 2004, p. 83). Fairness in this narrow sense would rule out selecting combatants based on arbitrary criteria that are not relevant to their ability to participate (such as social privilege or education would usually be: Rawls, 2001, p. 47; also Rawls, 1999, p. 334). As such, it is unlikely to come into conflict with the second and third considerations below. 5
If a society recruited soldiers on a voluntary basis, this might to some extent obviate the question of fairness in distributing the burden of combatancy. But it would be necessary to ensure that the use of financial inducements was not taking unfair advantage of social inequalities. And since variations in the visual and spatial separation of combatants from non-combatants will affect the degree and kind of risk to which civilians are exposed, the question of distributing the burdens of war fairly is also relevant to the non-combatant population.
Fairness in this sense is not, however, the only consideration and a defensible conception of in bello justice must also take two important prudential considerations into account (see Rawls, 1999, p. 6). On the one hand, what I call the ‘goal of bare peace’ (number (2) above) concerns the need to ensure that the society and as many of its members as possible survive the war and to achieve as much protection for them as possible. This reflects the aim of the discrimination principle as usually understood: it provides each side with a means of trying to protect some of its population, structures and resources from the conflict, which it does partly by designating as many people ‘civilian’ as it can afford to. For any society to benefit from a successful just war, it must survive the war (e.g. Walzer, 2006, p. 4). Crucially, this means that there must be a residuum of civilian life at the war's end along with the political and administrative structures it requires sufficient to make peace worth having. A military venture that threatened the continued possibility of civilian life after the war could hardly be justified in most circumstances (though see Meisels, 2008, p. 108; Statman, 2008, p. 665; on the levée en masse, see Nabulsi, 1999, pp. 52–5; Walzer, 2000, p. 185). For the purposes of applying a viable conception of in bello justice, this will mean that possible alternative arrangements should be evaluated according to the nature and degree of exposure to military hazards that each is likely to entail for the side as a whole. 6 Wars generally entail at least some harm to civilian lives and the structures and spaces within which they are lived. A people engaging in war can try to vary the degree of harm by its decisions both about which civilians to enlist into the armed forces and how many, and about how to distance its combatants from civilians and civilian zones during the fighting.
The third value determining the range of available conceptions of in bello justice arises from considering the cause justifying war. In just war theory, the presumption that the side in question is engaged in a just war implies, ex hypothesi, that the goal it seeks to achieve or the values it tries to protect are of sufficient importance to justify the costs of a credible attempt to win the war (assuming some ‘reasonable’ prospect of success). Thus, the value of the cause is itself a key variable in the formula by which political leaders should decide how far to expose their citizens to danger. In his analysis of the contract by which he thinks the basic principles of the jus in bello would be agreed between states, Benbaji writes that ‘the objective of the contracting parties is minimizing the harm inflicted on morally innocent people within wars, without limiting the right states have to use force in protecting their just claims’ (Benbaji, 2009, p. 599). My argument is that the same considerations should guide states in their uptake of the jus in bello as might guide them in its original construction. The more important the cause, in this perspective, the greater the degree and type of exposure of civilian life and lives a people might find it reasonable to contemplate.
Together, the second and third considerations present themselves to a warring side as a gamble which it has to approach as prudently as possible. It has to ask itself what exactly and how much it is able or prepared to place on the table. What can it afford to lose? Are the forces at its disposal such that it can hope to avoid defeat even with only a relatively small exposure of people and goods to the fighting? Or is a high level of exposure for its citizens necessary to offer serious hope of victory, for instance through mass conscription? The balance of forces between different sides in the war and the tactical question of how to meet hostile forces successfully are variables that will affect the decisions a side needs to make as it considers how best to absorb the demands of moral, political and military necessity.
The range of possible conceptions of in bello justice that a people and its leaders might contemplate in the face of a particular conflict is thus based on considerations of both fairness and prudence regarding the rights and interests of their citizens. The legal rights of enemy soldiers form a further constraint when it comes to the use of irregular combatants within the terms of the LOAC, which I will discuss in the fourth section. The possibility that there might be more than one potentially valid approach at the same time becomes particularly important when we differentiate between three distinct ways in which a particular conception of in bello justice may be adjudged ‘legitimate’.
Legitimacy
A conception of in bello justice may be deemed ‘legitimate’ to a greater or lesser degree in one sense according to its fairness and probable outcomes, that is, if it is justified in terms of the degree to which it fulfils the three social goals outlined above: basic standards of fairness domestically, the goal of bare peace and the goal of just peace. Legitimacy in this sense runs close to ‘justification’ as characterised by A. John Simmons but the usage is compatible with that of various theorists, Buchanan in particular (Buchanan, 2004, p. 5, p. 233; Simmons, 1999). However, the first form of legitimacy does not alone complete the political dimension of in bello justice.
The second sense in which a conception may be adjudged legitimate concerns the proper basis for determining its content and for ensuring that its outputs are justified. Here I assume that to achieve a meaningful understanding of what would count as an appropriate output, you need consultation with those affected by the policies in question; you need to know something about their interests and preferences. Justifying a particular conception relies on difficult and uncertain judgements about various imponderables: first, about the likely consequences of different strategic alternatives for military recruitment and deployment both in terms of the risks they pose to civilians and the likelihood of victory or defeat arising from each; second, about the kind of weight that should be given to the protection of civilian life from the war itself (bare peace); and third, the value that should be ascribed to the goals to be secured through victory (just peace). The first set of issues are subject to contingencies that make any attempt at calculation highly uncertain. The second and third have an irreducibly subjective component. All three, therefore, require consultation as widely as possible with the intended beneficiaries of the just war. This is true particularly if the aim of the war involves political values such as collective self-determination: a war aiming at secession, for instance (as distinct from one responding purely to grievous human rights violation) gambles the lives of individuals against a value that may well be regarded as less important than the right to life. On the other side of the calculation, where the prospects of success are uncertain and can be pursued only at the probable cost of many lives, consultation is necessary to find out how much additional risk those affected are prepared to endure for a given increase in the chance of success. As John Rawls puts it, ‘[t]here is no avoiding … having to reach a complex judgment weighing many imponderables, about which reasonable persons are bound to differ’ (Rawls, 2007, p. 135). Therefore, dialogue with those on whose behalf the war is undertaken is necessary for a proper calibration both of the goals of the war and its potential costs, and a second form of legitimacy turns out to be the necessary prerequisite of the first. Whereas established democracies are likely to have a range of instruments and institutional channels available to them through which to seek indications of popular concerns and preferences, non-state groups are likely to have much more varied opportunities for consultation and will have to rely more often on informal forms of communication.
The question of legitimacy arises in a third form where there is more than one possible conception of in bello justice and where each has a contested claim to justification (or legitimacy in the first sense). This is most apt to occur where there is widely felt uncertainty about the weight to be given to different variables. For instance, the value assigned to the justifying cause of the war might be calibrated in different ways on subjective grounds, as some individuals may be happier to face the risks associated with defeat than others. Similarly, there may be reasonable differences of opinion about the chance that a policy will be effective (say, an increase in the numbers of civilians enlisted into the armed forces) or people might feel more or less strongly about the risks associated with deploying irregular rather than uniformed troops. If there are effective channels through which to measure, influence or negotiate with popular will, then it is necessary to use them, seeking indications of support for a particular policy in the wider population, especially if the policy exposes civilian life to high levels of risk. Where there are indeterminacies of this sort, that is, where there is not simply one policy with clear advantages over all others, then it is necessary to assess the degree to which those most affected are likely to consent to them. The ‘burdens of judgement’ ought to be shared, therefore, as widely as is practicable in the circumstances (see Waldron, 2010, p. 88).
Some arrangements, on a liberal view, are unjust no matter how widely they are accepted, for example if a community conscripted only the members of a certain ethnic minority or if it sought to recruit only the economically vulnerable as ‘volunteers’. Even if wide support could reasonably be expected in a particular context and so such arrangements were legitimate de facto (i.e. in sense 3), they could be challenged from the point of view of justice (legitimacy in sense 1). So while fulfilment of the third legitimacy criterion (or at least the absence of strong evidence of popular opposition) may be necessary, where feasible, to validate a particular conception of justice, it is not sufficient. But equally, where channels are available for consultation and authorisation, it will sometimes be the case that prima facie fulfilment of legitimacy in the first sense is not sufficient without fulfilment of the second and third senses.
Discrimination and the Rights of Irregular Combatants
I return now to the question of irregular warfare. The use of non-uniformed soldiers is one way in which a people engaged in just war might try to improve its chances of success by narrowing the distance between its combatants and non-combatants. It also helps clarify the significance of fairness to enemy soldiers as a dimension of in bello justice.
I assume that, in at least some cases, the best chance of winning at an acceptable cost for a just, non-state side will be to invoke the LOAC and to accept its attempt to allocate rights and constraints between opposing combatants according to a principle of legal ‘equality’. Adherence to the LOAC in this regard is justified for the just side when it offers the best chance of realising the deeper moral commitments underlying the jus ad bellum, centrally the pursuit of justice (‘just cause’) and the obligation to ensure that the cost of doing so will not be excessive (ad bellum‘proportionality’). For this reason, although the rights given to unjust combatants under the LOAC are in tension individually with the deep morality of war, it is nevertheless at least sometimes morally better for the just side to grant them and for soldiers to treat all actions permitted by the LOAC as if they were also morally justified. When they do so, all undertake to fight within the constraints of a regime of ‘fair play’ between opposing combatants that is partly conventional in the perspective of deep morality but at the same time justifiably invoked as a restraining influence on combatants. 7
I next distinguish four different types of irregular tactic according to the way they implicate civilians and civilian identities in warfare. All but one either contravene the artificial principle of fairness that the LOAC institutes between opposing combatants or infringe the deeper moral rights of innocents. But as I argue below, in so far as it merely evens out the distribution of risks between combatants and non-combatants on the same side, the use of non-uniformed soldiers simpliciter (i.e. without additional ‘perfidious’ means such as using civilian shields or ambush by means of civilian disguise) might sometimes be justified and legitimate in the terms analysed in the third section. I then turn to the question of fairness to enemy regulars within the conventional terms of the LOAC.
Four Types of Irregular Tactic
There are several quite different ways in which irregular combatants can involve the civilian population on whose behalf they fight. I will distinguish four.
The first (tactic 1) involves the use of civilian guise but not for the purposes of military deployment or ambush; rather it is to avoid elimination prior to combat. The guerrillas' decision is simply not to take the additional step of wearing a uniform or insignia, remaining dressed in their normal civilian garb and carrying arms openly only during combat. The consequences of this decision are greatest where they operate in densely populated civilian areas.
Tactic 1 is different from cases where soldiers adopt a civilian disguise in order to mislead enemy soldiers while attacking them (see Walzer, 2000, p. 183). As an instance of this second type (tactic 2), consider the French partisans discussed in Michael Walzer's Just and Unjust Wars (Walzer, 2000, p. 176) who dressed as peasants in order to ambush German soldiers or those FLN guerrillas depicted in Gill Pontecorvo's film, The Battle of Algiers (1966), who used civilian guise to get close to targets before shooting them when their guard was down. The difference compared with tactic 1 is that civilian identity in tactic 2 is actively and deliberately deployed as a means of lowering the enemy regulars' guard, diminishing their ability to defend themselves while they adhere to the discrimination principle. The distinction is made in Protocol 1 which permits tactic 1 but expressly prohibits tactic 2: non-uniformed combatancy is permitted as long as the irregulars carry their arms openly ‘(a) during each military engagement, and (b) During such time as [they are] visible to the adversary while … engaged in a military deployment preceding the launching of an attack in which [they are] to participate’ (Art. 44 (3)). But the Protocol prohibits the use of civilian disguise where it is used perfidiously: Article 37 declares that:
It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy. The following [exemplifies] perfidy: … (c) The feigning of civilian, non-combatant status (compare Steinhoff, 2010, p. 84). 8
Tactic 2 is different again from tactic 3 which involves placing people clearly identifiable as civilians in a visible position close to military positions and personnel during combat in order to deter attack (for examples, see Schmitt, 2009). The extent to which this tactic actually increases the risks facing civilians will depend on the enemy's tolerance of making sacrifices in military effectiveness for the sake of discrimination and its willingness to inflict collateral damage. Where additional casualties do occur in these cases, the attacking forces presumably take on some moral responsibility as intervening agents but a significant remainder must also be laid at the feet of those deploying human shields in so far as they knowingly expose them to danger. 9 As I intend it, tactic 3 refers specifically to the coercive use of civilians as human shields. It is conceivable that civilians might sometimes volunteer to aid their own soldiers, but I leave such cases aside since the civilians thereby arguably take on a combat role, rendering moot their immunity to attack (Gross, 2010, pp. 154–62; Protocol 1, art. 51 (3) in Fabre, 2009, p. 40).
Finally, a fourth possibility (tactic 4) is that a group might conceal non-combatants in a position close to a visible military target to increase the chance of collateral harm and fuel feelings of outrage against the group's enemies. This is a form of terrorism – in the standard sense of the term – since it involves intentionally causing the death of civilians as a military or political instrument. While civilian casualties arising as a result of tactic 3 implicate enemy forces morally when they continue to attack regardless of the evident collateral risks, tactic 4 is designed to diminish the agency of the enemy in order to blame them after the fact. 10
I want to propose a defence of tactic 1 in particular. In some more desperate circumstances, tactic 2 might be justifiable in terms of the first three normative considerations discussed in the third section. 11 But, like tactic 3, it raises problems of fairness towards enemy regulars under the framework of symmetrical combatancy rights codified in the LOAC. In fact, by contrast with tactic 1, tactics 2, 3 and 4 all involve methods that may be seen as wrong independently of the issues I have concentrated on. Tactic 4 aims directly at the death of innocent civilians for political advantage. Tactics 2 and 3 both involve a breach of trust by exploiting the willingness of enemies to comply in good faith with the LOAC's principle of non-combatant immunity as a means of killing them. I will expand on this point below where I defend tactic 1 from the charge that it necessarily imposes unfair disadvantages on enemy combatants. But first, I challenge the argument that it necessarily imposes unfair burdens on non-combatants.
Irregular War and the Rights of Non-combatants
Some critics of Protocol 1 argue that dispensing with uniforms wrongs civilians on the same side by increasing the rate of collateral harm they suffer from enemy attacks, particularly when fighting from within densely populated areas (e.g. Chiu, 2010; Meisels, 2008). On the account of in bello justice I offer, irregular tactic 1 can be defended from this objection.
I have argued that whether a particular arrangement of the combatant/non-combatant distinction within a society fighting a just war is justified is not a question of whether the people whom it places at risk are morally liable to harm, since none are (unless and until they render themselves liable to attack by wrongful acts of their own). Instead, it must be a question of whether its distribution of risks fulfils basic requirements of fairness and adequately balances the goals of just peace and bare peace. The claim I wish to make on this basis regarding irregular warfare is as follows: if these three considerations can sometimes justify a legitimate wartime leadership in exposing some of its morally innocent citizens to very high levels of risk by conscripting them as combatants and ordering them out to fight, then, a fortiori, it could surely also justify in some circumstances the exposure of other equally innocent citizens to lesser risks of harm collaterally by permitting the soldiers to fight without visible insignia. Both decisions involve the same kind of rights ‘prescription’, as I have called it, though the truncation of rights suffered by citizens in the second case is less drastic. Based on my account of in bello justice, irregular warfare would therefore be justified where wartime leaders determined in consultation with their people that the ends pursued were of sufficient value, the chances of victory using conventional as compared with irregular methods were sufficiently slight, and the likely damage to civilian life resulting from the use of non-uniformed troops was likely to be both fair and acceptable to the population generally as the price of increasing the chances of victory (see McMahan, 2010, pp. 359–60).
Based on the third legitimacy criterion, a non-state movement should not initiate irregular war in the face of widely articulated popular opposition. But the greater the support, the greater the legitimacy of using a strategy by which people agree (to whatever extent possible) to spread the risk more widely across the population than in regular war. The ability of a non-state group to conduct an irregular war justly is therefore likely to be strongly affected by the legitimacy of the organisation itself, in terms both of its support among the people it claims to represent and the degree to which it reflects their interests and preferences in its decisions.
Setting aside the question of the rights of enemy regulars, the policy of narrowing the visual and spatial distance separating combatants from non-combatants by deploying non-uniformed soldiers in urban settings could be justified on the basis that the distribution of risks and benefits it potentially offers is fair overall. In so far as the additional harms civilians suffer as a result of their increased vulnerability are the result of unjust war by their enemies, they are grave injustices. But where the three legitimacy conditions (in the third section) are fulfilled, they do not constitute an unfair infringement, all things considered, of the civilians' rights by the irregulars themselves or by their political leaders.
Irregular War and the Rights of Regulars
To complete the analysis, I turn now to the objection that the use of irregulars as permitted under the Additional Protocol 1 unfairly biases the jus in bello in favour of irregular forces and against their regular opponents. My response is to argue that while the tactics distinguished as 2 and 3 above would typically aim at an unfair (dis)advantage, tactic 1 would not.
In practical terms, the decision not to wear uniforms in tactic 1 might reduce the ability of regulars to do three things:
to achieve legitimate military aims through combat; to defend themselves individually from harm; to assassinate or arrest enemy combatants who are not presently engaged in combat and prior to deployment.
Criticism of Protocol 1, Article 44 (3) tends to focus on the first and second of these abilities (Meisels, 2008, pp. 104–8; compare Fletcher, 2002, p. 108; also Chiu, 2010, p. 49, p. 55; Dinstein, 2004, p. 46; Roberts, 1985–6, p. 129; Solis, 2010, p. 132). Irregular tactics reduce the ability of regular forces while enhancing that of the irregulars to achieve legitimate war aims. Moreover, it is much harder for regular soldiers to defend themselves individually when trying to fight discriminately against enemy combatants whose status is not clearly signalled. The problem with permitting irregular warfare in the LOAC, on this view, is that it introduces an unfair distribution of rights between the irregulars on one side and, on the other, both the opposing regular army as a whole and its individual members.
To respond to these claims, it is necessary to specify precisely why irregular warfare might be justified in the context of wars against occupying forces specifically, when it is not permissible in a war between states even of very different strengths. I will argue that this is not primarily due to asymmetries of power or resources as is often assumed (on which, see Chiu, 2010, p. 47, pp. 56–60) but arises from the conditions of occupation itself.
Wars fought against occupying armies (and domestic oppressors) have two important features absent from wars between states. The first is that the enemy's presence within and across the whole extent of the disputed territory makes it impossible to define a front line dividing the two opposing sides. Front lines are very important for the normal conduct of war: they provide a means by which one's civilians can be kept back from the fighting and they define the point at which combatants expose themselves directly to the hazards of war. Behind the line, combatants can withdraw, regroup, await orders for mobilisation or even retire and return to civilian life. As Benbaji writes, when ‘warfare is removed from the cities to the battlefield … the soldiers' family members are safer, released soldiers would have safer places to return to, and wounded soldiers would have protected healing places’ (Benbaji, 2009, p. 494; compare Roberts, 2008, p. 950). In a war with no front line, these benefits become at best problematic and at worst impossible as all combatants are continually exposed to the risk of attack or capture, at least as long as they are easily identified visually.
In effect, therefore, irregulars might restrict themselves to tactic 1 simply to establish the same ability that regulars have to withdraw temporarily from fighting for purposes not inconsistent with the laws of war. Forgoing the use of insignia or uniforms and concealing weapons when not in use or deployment are likely to be necessary if irregulars are to avoid arrest or assassination while performing military-logistical and administrative functions that are normally carried out away from the front. This is especially the case in the era of drones and other remotely controlled weapons.
A second important consequence of occupation is that decisions as to where the enemy forces should be engaged in fighting are largely taken out of the hands of the irregular forces because the regulars are already in the country, occupying its key strategic positions. Based on these decisions, the theatre of war is likely to overlap unavoidably with the spaces occupied by civilian life, whatever the insurgents might wish to do. All in all, as Michael Gross observes, ‘the weaker side, fighting within civilian population centres, does not have a safer place to retreat’ (Gross, 2010, pp. 153–4). The forces of resistance are therefore left with little room for manoeuvre.
The laws of war in their current form seek to regulate and limit conflicts (including those with non-state groups) by means of a principle of ‘legal equality’ that requires the setting of rules that are equitable between opposing sides. This is the main reason why tactics 2 and 3 are illegitimate for a side that undertakes to fight within the terms of the LOAC: both seek to make the principle of discrimination disadvantageous to one side while retaining its benefits on the other (all the while based on the assumption that the obligation to observe discrimination in the choice of targets still applies to both). But when it is directed solely at avoiding elimination by assassination or arrest, the use of tactic 1 can be seen as an attempt to restore fairness in the distribution of rights and duties in the LOAC between soldiers on opposing sides rather than to undermine it. The option of organising or retreating behind a front is generally available to regular soldiers. In wars with non-state parties, this is true particularly if the regulars fight for foreign occupiers or colonial states. But even in cases of domestic oppression and civil conflict, regulars are more likely than their opponents to have fortified spaces into which they can withdraw. Permitting non-state soldiers engaged in liberation wars to forgo the use of uniforms affords them to some degree the same ability. The protection that they thereby enjoy from assassination or arrest by regular forces is then reciprocated in the duty of irregulars to abstain from the ‘perfidious’ use of civilian disguise in ambush. This duty prevents irregulars from exploiting the discrimination rule as a means of diminishing the ability of regulars to defend themselves individually. So as long as the only consequence deliberately sought by legitimate irregulars using tactic 1 is the third one (to avoid elimination prior to combat), I argue, then the use of irregular warfare is consistent with fairness to enemy regulars within the terms of the LOAC as well as to civilians on the irregular side.
Conclusion
In light of my analysis of in bello justice, irregular warfare against occupying forces is legitimate where the following conditions are fulfilled: first, where it is justified in terms of the interests of the people on whose behalf it is waged, all things considered. Justification requires the careful balancing of different considerations: the goal of protecting civilians and civilian life so they can survive the war; the goals making up the cause of the war; and the fairness by which burdens are allocated in seeking the best possible balance between them. A second condition is that the particular conception of in bello justice that is chosen by wartime leaders ought to be based as far as possible on consultation with the interests and preferences of the people on whose behalf it will be applied and, third, it ought to be based on their consent where this can be obtained. The use of irregulars will most likely increase the level of collateral damage necessary for achieving the same levels of success on the parts of enemy regulars, but I argue that where the conditions of justification and legitimacy are fulfilled, these additional harms to civilians do not generally constitute an unfair infringement of their rights by the irregulars.
Moreover, so long as the use of irregular tactics is directed primarily towards the protection of insurgent soldiers from elimination prior to combat, then its effect on the success of legally licit tactics by enemy regulars is incidental, that is, a foreseeable but unintended consequence. It does not introduce an unfair adjustment of legal rights between soldiers on opposing sides even if it happens to diminish to some degree the ability of regulars to pursue legitimate military goals. Instead, it restores in wars against occupiers a degree of fairness in the LOAC as all combatants are legally protected from perfidious attacks, whether through ambush by means of civilian disguise, or assassination by regular forces.
Footnotes
Work for this article was supported by a British Academy/Leverhulme Trust Senior Research Fellowship (2010–1). Earlier versions were presented at the conference on ‘Global Ethics: Ten Years into the Millennium’ at the University of Western England (June 2010), the Political Theory Research Group Seminar, POLSIS, University of Birmingham, and the Annual British International Studies Association Conference in Manchester in April 2011. I am grateful to Yitzhak Benbaji, Luis Cabrera, Michael Gross, Jeff McMahan, Cian O'Driscoll, Jonathan Parry and the referees for Political Studies for valuable written comments. I also benefited from discussions of the piece with Kerstin Buddle, Sarah Colvin and James Pattison.
1
2
3
The LOAC offers some guidance by deeming children, for instance, ineligible for combatant status (Solis, 2010, p. 130), but is not otherwise specific.
4
While the use of legal penalties as a coercive pressure to enforce conscription might sometimes be justified in the terms I identify in the third section, it is unlikely that the exploitation of background social and economic pressures to induce ‘voluntary’ recruitment will fulfil the requirement of fairness.
5
My thanks to Jonathan Parry for pressing me to clarify this point.
6
Different peoples may conceptualise what I am calling ‘bare peace’ here in different ways, for instance by prioritising different zones of peacetime activity (familial, for instance, or cultural or religious). I thank one of the referees for this journal for pressing me on this point.
7
There may be cases in which the LOAC is not an appropriate framework for regulating armed conflict from the perspective of the just side. They would arise where an ethic that denied the war privilege to unjust warriors offered a better balance between the chance of the just side winning and the probable costs of doing so. I will not try to defend this potentially controversial suggestion here.
8
The ‘visibility’ criterion here could be complicated by the surveillance capabilities of modern armies since it may be possible for long-range imaging to detect the mobilisation of irregulars a long time before they would become visible to the individual soldiers whom they intend to attack. I assume that visibility to the latter would be the most appropriate criterion in present conditions to determine when the irregulars should declare their identity for reasons that will become clearer below. Thanks to one of the referees for the journal for pressing me on this point.
9
Particularly since the collateral killing of the civilians in question may be legally permissible to the regulars if it is demonstrably ‘necessary’ for the achievement of a valid military objective and is not disproportionate to its value.
10
See Roberts, 2008, pp. 949–50, for discussion of related practices.
11
I leave this possibility aside for treatment elsewhere. It is conceivable that tactic 3 could also be justified in some more extreme circumstances according to the same principles. But one difference that would seem to tell against tactic 3 is the fact that civilians can try to manage the levels of risk to which they are exposed under tactics 1 and 2 by fleeing from the scene of fighting whereas this is impossible in cases of tactic 3 as I define them.