PHIL 2429 Chapter Notes - Chapter 5: Jus Ad Bellum, Enemy Combatant, J. Walter Thompson

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25 Dec 2016
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War, Torture, and Terrorism
Frowe, Chapter 5 Reading Notes
Chapter 5: The Conditions of jus in bello
Realism
Realists argue that the nature of war defies legal or moral constraints and that state
leaders should act only in their national interests
o Otherwise there are no rules
Becomes an alternative to just war theory
Two main forms of realism
1) the absence of rules is better for the warring nation
o war is hellish and should be over as quickly as possible
o having rules restricts the options available to combatants, slowing them down
o we can overwhelm the enemy in a short amount of time without rues
o might be brutal but would be shorter
o tagged pesiptie ealis
o This overlooks that people care how combatants act in war
Part of having rules makes reconciliation easier
2) tagged descriptive realism
o pole is’t that e should’t egulate a ut that e a’t
o the atue o a ad huaity ake it ipossile to ty to estit people’s
actions in the direst situations
o horrors of war will lead combatants to do terrible things that we a’t blame
them for i.e. under duress
o objection empirically false that combatants can never follow rules of war
they usually hold themselves to a moral code (for example bc they want
to distinguish themselves from terrorists)
this is why we distinguish between war and war crimes
Since all sides care about protecting their itize’s heritage and infrastructure, it’s in the
interests of all parties to have rules governing the damage that can be permissibly
inflicted in war
Just war convention instead of jwt oetio ephasizes the idea that the ules of
war are merely mutually beneficial agreements rather than the result of fundamental
moral principles
o More moderate form of realism
o Says that we ought to obey them, but are mistaken if we think that they are
tue i a deepe sese
The independence of jus in bello
Jus ad bellum and jus in bello are logically independent of each other
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Jus ad bellum is a political matter where politicians decide whether or not to fight in a
war and are thus morally and legally responsible for the justness of that war
o Combatants have no control over this so its unfair to label their actions criminal
Combatants need only pay attention to jus in bello - thus their actions need to be just
even if their war is unjust
A just war can be unjustly fought and an unjust war can be justly fought
Unjust war is still a law-governed activity
Nearly all combatants would consider their wars just anyways and would adhere to jus
in bello even if those only applied to those fighting a just are
If we automatically deny those fighting an unjust war from obeying in bello rules and
brand them as criminals, then this removes an incentive to care about things like
minimizing civilian casualties or protecting prisoners of war
By separating the justness of how one fights from the fact that one fights, we give
combatants a reason to avoid committing atrocities
This is the most orthodox view of JWT
But McMahan denies that combatants can fight justly even if their war is unjust
The Rules of jus in bello
Four categories:
1) the conditions that a person must meet to quality as a combatant
2) governs that the gadgets that one may legitimately attack in war
3) the sorts of tactics one may use in both scale and the sort of weapons or strategies
that can be permissibly employed
4) the rules that govern the treatment of prisoners of war
Qualifying as a Combatant
Geneva Convention of 1949 stipulated conditions:
1) Must be part of ah hierarchical group, such that there is a recognizable chain of
command
o unless thee’s a clear sense in which a person can be said to be giving or
following orders as a part of a larger organizatio the they do’t uality
o used to distinguish from mobs etc.
o damage must be authorized
o a chain of command ensures that thee’s a scope for punishment and discipline
within a group
2) Wear distinctive emblem that is visible from a distance
o mark themselves as legitimate targets
o thus they protect noncombatants sie they ake it lea ho is ad is’t a
legitimate target
o otherwise the chances of accidentally targeting noncombatants would be greatly
increased
3) Bear arms openly
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