The Ethics of War

11.Forelesning

”What if an international terrorist planted a nuclear bomb somewhere in Manhattan, set to go off in an hour and kill a million people. You've got him in custody, but he won't say where the bomb is. Is it moral to torture him until he gives up the information?” (The Slate, 13.12.05)

Torture is inefficient Hard cases make bad law!

”The War on Terror” as supreme emergency?

Does the threat of terrorism constitute a supreme emergency?

Supreme emergencies apparently justify setting aside jus in bello rules (non-combatant immunity)

But only if the political community is severely threatened as to its very existence

But how do we interpret that? The scope? The gravity?

Side-effects of construing terrorism as supreme emergency

Legitimizes torture Legitimizes setting aside civil and human

rights Oppressive states use the ”terrorism

excuse” to justify hard treatment of legitimate minority claims – and get support! Russland/Tsjetsjenia, Israel/Palestina

Ex; ”The commander-in-chief override”:

John Yoo: ”congress can place no limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response”

(David Luban, ”The defense of Torture”, The New York Review,

14 February 2007)

”The Torture Memo”

”Inflicting physical pain does not count as torture unless the interrogation specifically intends the pain to reach the level associated with organ failure or death…inflicting mental suffering is lawful unless the interrogator intends it to last months and years beyond the interrogation..”

(David Luban, ”The defense of Torture”, The New York Review, 14 February 2007)

Terrorism: War or crime?

Yoo’s basic argument- The struggle against Al

Qaeda is a war, not law enforcement

- Therefore, the President’s powers as commander-in-chief overrides civil law

- + The battlefield is everywhere!

- And eternal?

”War or crime?” is important because

The way we conceptualize ”terrorism” determines:

- Who has the power(s) to decide on the means

- What the proper means are- How to treat the offenders (i.e. their

legal status)

Luban:

”The war on terror” is a war, not law enforcement

September 11th was a military campaign, not a criminal act

Al-Qaeda’s terrorism is politics by violent means (= Clausewitz’s definition of war)

AQ’s ends are geopolitical

Luban against Yoo

1) War against terror is a new kind of war2) Traditional presidential war powers apply (inlcuding,

now, the power to interpret Geneva Convention!) But that is a contradiction, because presidential

powers are designed for traditional war: a limited conflict regulated by treaties and demarcated by uniforms.

Problems with the new war:- When does it end? (POW’s)- How do we distinguish it from peace? (cf. open

declaration!)- Mix of war and peace, military and civilan law…

Acts of terror in war

Link to JWT: Double effect Terror bombing versus tactical bombing Intentional targeting of non-combatants in order to

win military advantage by undermining morale or bring war to rapid end (nb!)

Examples: Dresden, Berlin, Hiroshima, Nagasaki Is this the same phenomenon as terrorism outside

of the conventional war context? Depends on definition of terrorism..

What is terrorism?

• Searching for a definition: - What characterises the phenomenon?- What are its special features?- Delienate terrorism from other types of

violent acts• Is terrorism always a moral wrong?

Types of definitions

- Tactical/operational- Teleological - Agent-focused (political status)- Object-focused (victims)

Tactical/operational definitions

Weapons used Who can be the targets of terrorist

acts? Persons? Property? Mode of deployment: - Indiscriminate?- Random?

Teleological definitions

Focus on end/goal Political purposes Instilling fear (the ’terror’ of terrorism) Coercion

Agent-focused definitions

Focus on the nature of the agent Non-state actors (Revolutionaries,

Walzer) US State Dept definition: ”.. Sub-

national or clandestine groups” Political status definition: ex hypothesi

impossible for state actors to commit terrorism!

Object-focused definitions

Attacks against innocent/non-combatant/neutral/civilian

Coady’s definition

The organized use [or threat to use] of violence to attack noncombatants or innocents (in a special sense) or their property for political purposes”

Tactical definition? Rather a combined tactical + object-focused + teleological def. But also agent-focused element? Organized!

Implications: states can commit terrorist acts Not all non-state actors committing political violence

are terrorists.

Goodin’s definition

Aims to answer ”What is the distinctive moral wrong of terrorism?” (non-reducible to killing, maiming, etc)

Def: ”Acting with the intention of instilling fear in people for one’s own political advantage”

Also a tactical definition, with teleological elements

Note that it has neither agent- nor object focused elements!

Rodin’s definition

”Terrorism is the deliberate, negligent or reckless use of force against non-combatants, by state or nonstate actors for ideological ends and in the absence of a substantively just legal process”

Comparing the definitions

1) Shared: Political/ideological purposes

2) Shared: non-agent focus

3) Not shared: Violence/force

4) Not shared: Emphasis on terror (fear)

5) Not shared: Emphasis on intentions

6) Not shared: Emphasis on effects