Bello Principles Research Articles

A Legal Analysis of the Obama Administration's Position on Targeted Killings

This article provides a legal analysis of President Barack Obama’s position on the use of drones for targeted killings in the continuing armed conflict with al Qaeda and the Taliban as outlined through the public speeches given by members of his Administration and through media reports of a White House Office of Legal Counsel opinion. When considered within the rubric of the Law of Armed Conflict (hereinafter “LOAC”), it appears that the Obama Administration’s policy of using drones for the targeted killing of enemy combatants is in compliance with the jus in bello principles of necessity, humanity, distinction, and proportionality. In contrast, the Administration’s alleged use of CIA operatives, rather than regular uniformed soldiers, in conducting drone strikes is contrary to the Administrations expressed position that the use of these drones in targeted killings does not constitute unlawful assassination or murder due to the belligerent’s privilege. Further, the Administration’s position that the Executive branch can independently and secretly satisfy the rigors of constitutional due process that may apply to the targeted killing of an American citizen is completely inconsistent with established Constitutional law. Finally, the Administration’s application of the imminent danger exception to Fourth Amendment protections against governmental use of lethal force is misplaced; as such protections would apply in a law enforcement paradigm not in targeted killings justified under LOAC, regardless of the citizenship of the target.

Militia vel Malitia: How Can the Military Contribute to a Just Society?

ST. ANSELM IS SUPPOSED TO HAVE REMARKED, vel malitia, a wonderful quip that loses in translation: militia or rather the malicious. While this remark is certainly right about the military in many times and places, it is worth pointing out that were it true always and everywhere, the project of building a just society, which is likely to entail some degree of military protection, would face a serious stumbling block. This problem is all the more urgent if we hope that a just society would be grounded in the culture of life. The professions are quite central to culture, shaping the lives of millions and largely defining the contours and feel of public space. Along with medicine, law, and the ministry, the military is one of the traditional professions, and one that employs millions of Americans. Despite its illiberal, hierarchical, meritocratic tendencies, it has a cultural gravitas and prestige that has been able to withstand various scandals. And in the current climate (involving two ongoing wars, increased security measures, and so forth), the military is only likely to increase in cultural importance. Yet how could the military contribute to a just society? Negatively, it can fend off extinction (a negative but not negligible contribution, it should be noted), but can it make any positive contribution? Or we might ask: If the military is necessarily endowed with both the force and the right to kill, how could it be a part of a culture of life? Many occupations will have no place in such a culture: executioner, torturer, mercenary, gladiator, and so on. Should we add soldier to this list? The primary mission of the military is, or at least can and should be, to protect--to provide, as our Constitution has it, for the common defense. The principles of just war endorsed, at least nominally, by most professional militaries today, and certainly by the U.S. military, place a premium on the protection of innocent life even in the midst of hostilities. Although the U.S. military has certainly committed its share of atrocities, recent wars have been marked by serious attempts to live, and fight, by these principles. In the war in Iraq, our military has shown an unprecedented, although still very imperfect, commitment to the jus in bello (justice in war) principles of discrimination and proportionality. While other features of the military, notably its commitment to excellence and tradition, are also salient (and I will touch on some of them), it is this commitment to life even while holding the power of deadly force--a commitment that is not just official but often real--on which I wish to focus in this paper. It is at the core of what the military can contribute to a just society and a culture of life. After contending that it can do this, I will argue that the military could do it much better if it reconceptualized some aspects of its ethic and ethos. I close with some suggestions concerning how it might do so. I. Examples Toward the end of Ethics and the Limits of Philosophy, Bernard Williams considers a business leader who says in a meeting of his competitors, Of course, we could have them killed, but we should lay that [option] aside right from the beginning. Lay it aside? It should never, Williams says, have come into his train of thought as an option in the first place. (1) Williams's remark is right on target--at least in business and most other human contexts. But war does put this option into our hands, and can even seem to force us to use it. Here are two real examples, which are particularly acute as they involve children. First: In the recent war in Iraq, in the middle of a firefight with Fedayeen troops (paramilitary), a U.S. Marine sergeant on a rooftop spotted a boy about twelve years old running out into the street, where he gathered rocket-propelled grenade launchers from fallen men and carried them back to active fighters. In other words, he was rearming the enemy. …

With Fear and Trembling: An Ethical Framework for Non-Lethal Weapons

This article augments and enlarges the process of framing a more systematic and holistic ethical approach to non-lethal weapons that also provides caveats and restrictions – along the lines of jus in bello principles in the just war tradition – on their use. Rejected as morally impermissible is the use of non-lethal weapons as: (1) a way to circumvent or make irrelevant classical moral distinctions; (2) an ‘easy’ technological fix to complex moral and strategic problems; and (3) a method to make war more palatable and easier to use as both a military and political option. Non-lethal weapons can be ethical, and in fact may be ethically preferable to conventional weapons, only if they are used consistently with the following criteria (in strict order of priority): (1) to provide the military with more flexible response time and options, allowing them more time and space to carefully make the strategic and ethical judgments necessary in war and to respond with appropriate and proportional force; (2) to reduce unnecessary suffering on the part of non-combatants; (3) to facilitate the eventual restoration of peace; and (4) to minimize combatant casualties.

The Logical Structure of Just War Theory

A survey of just war theory literature reveals the existence of quite different lists of principles. This apparent arbitrariness raises a number of questions: What is the relation between ad bellum and in bello principles? Why are there so many of the former and so few of the latter? What order is there among the various principles? To answer these questions, I first draw on some recent work by Jeff McMahan to show that ad bellum and in bello principles are not, as often portrayed, independent—the justice of conduct in war largely presupposes the justice of the recourse to war. Undermining this independence claim is one important step toward revealing the unified logical structure of just war theory. I then argue that we can see the dependence of the jus in bello upon the jus ad bellum, not just in the content of certain principles, but also in the structure of the two sets of principles: I construct a one-to-one mapping between ad bellum and in bello principles. In doing so, I argue also that the shared structure successfully finds place for the questions central to the evaluation of the morality of war: what is a sufficient provocation to use force, what objectives may be sought by force, why or for what ends, who has authority to decide to use force, and when or in what circumstances? Despite variations in expression, the theory allows for a coherent and comprehensive evaluation of morality in warfare.

War

There is a long-standing set of criteria thoughtful leaders have used to helpdetermine when engaging in war is the right thing to do. The criteria havealso been long debated, and Larry May’s collection of fifteen original essaysmakes an excellent contribution to the discourse. Historical background isprovided by Gregory Reichberg’s “Jus ad Bellum” and Nicholas Rengger’s“The Jus in Bello in Historical and Philosophical Perspective,” both ofwhich are astutely concise descriptions of just war philosophical developmentfrom the western perspective. Most just war literature readily availableto western analysts has produced by western thinkers, and international legalstandards on war have been promulgated primarily through western interactions.But the rich Islamic tradition of just war jurisprudence and philosophy could have been included. The ninth-century scholar al-Shaybani, forinstance, wrote about the rules of war and has been called “the Hugo Grotiusof Islam.”Al-Farabi, the father of Islamic political philosophy, directly addressesthe justice of war (although significantly the best he will say of any war isthat it is not unjust), and many of his tenth-century principles are consistentwith western thinking; the lack of discrimination between military targetsand civilians is unjust in both traditions, for example. In his SelectedAphorisms, al-Farabi identifies innocents as illegitimate targets and evenhints that forcibly drafted soldiers might be considered “innocents” when thewar’s cause is unjust, thereby intertwining the ad bellum principle of justcause with the in bello principle of discrimination (Political Writings:“Selected Aphorisms” and Other Texts, trans. Charles Butterworth [CornellUniversity Press: 2002]). Thomas Hurka shares al-Farabi’s idea of interdependence.His superb essay, “Proportionality and Necessity,” poses questionssuch as: “How many enemy soldiers can be sacrificed to save one ofour own soldiers’ lives?” According to him, the right number differs accordingto the necessity and who is doing the calculating; in other words, jus adbellum and jus in bello influence each other ...

Limites et pertinence de la guerre juste face au terrorisme et aux nouvelles guerres

This article aims to examine the pertinence as well as the limits of the just war theory in order to apprehend the ethical issues raised by contemporary forms of political violence. Terrorism is undoubtedly an extreme case of political violence that puts to the test the theoretical and practical relevance of jus ad bellum and jus in bello principles. From a sociological point of view, it appears necessary to understand contemporary terrorism within the historical evolution of armed conflicts and under the light of current research devoted to the concept of ‘new wars’. Although I will argue that just war theory does not sufficiently take into account current studies on the empirical features of contemporary wars, it is nonetheless possible to salvage the theoretical and practical relevance of just war theory in a more specified sense. From a philosophical point of view, the goal of this article is to confront the theoretical and practical relevance of just war theory with the current body of research in the field of the sociology of war in order to assess both its limitations and its potential scope.

Forgotten Victims of Military Humanitarian Intervention: A Case for the Principle of Reparation?

The purpose of this article is briefly to present a case for the principle of reparation as a new jus in bello principle for just humanitarian intervention. The article is divided into three sections. In “Restorative Justice and Civilian Protection”, I investigate the idea of restorative justice in order to consider whether or not it can complement the shortcomings of the just war tradition in civilian protection. In “The Legal Framework on Reparation: Its Scope and Limitations”, I examine the scope of the law of armed conflict on reparatory measures in order to consider whether and how ideas of and measures for restorative justice might be incorporated in the jus in bello framework for military humanitarian intervention. In “The Issue of Civilian Victims: A Case for Reparation”, I explore the implications of reparatory measures for victims in order to suggest that these measures are not only beneficial to civilian victims but also imperative to be taken by the interveners if they undertake military intervention within the jus in bello framework and claim its moral justifiability.

Just War Theory and the Privatization of Military Force

The use of private military companies (PMCs) has become increasingly prevalent, with such firms as Blackwater, MPRI, and DynCorp taking over a growing number of roles traditionally performed by the regular military. This article uses the framework of just war theory (JWT) to consider the central normative issues raised by this privatization of military force. In particular, I first examine the claim that private contractors are inappropriate actors to wage war because they contravene the JWT principle of right intention. The next section asserts that the use of PMCs is largely consistent with the application of the principle of legitimate authority but undermines two of its central rationales. In the third section, I apply the jus in bello principle of discrimination to PMC personnel. Overall, I argue that JWT needs to be updated and extended to respond to the issues raised by the privatization of military force.

Towards a jus in bello of Guerrilla Warfare

Can guerrilla wars be fought morally? This essay explores this question by using a single case study, that of the Lebanese Hizballah. The intention of this study is to contribute to our understanding of the jus in bello of guerrilla warfare. Because this case study involves an Islamic resistance movement, a second intention is to contribute to a greater understanding of a movement of people condemned as terrorists in U.S. law and popular perception.I find evidence to indicate a jus in bello principle unique to guerrilla warfare. This principle, which I call the principle of respect, requires that guerrillas show respect for the lives and property of noncombatants. I find the morality of ordinary people to be the source of the jus in bello of guerrilla warfare.