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The Routledge Handbook of Global Ethics

Darrel Moellendorf, Heather Widdows

War and Terrorism

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Brian Orend
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PART II
Conflict and violence

Introduction
War, conflict and violence are central concerns of global ethics, and indeed to moral and political
philosophy in general. Violence and killing are prima facie unethical acts – they always harm
individuals – and therefore war and conflict, which require violence and killing on a large scale,
should always be deemed unethical. Surely, if anything is morally wrong, then killing people on a
massive scale must be. However, the question is not whether these are good acts, but whether
they can ever be justified, or indeed even morally required. For example, is violence permissible
or obligatory if it prevents worse violence? Many think that there are times when war is morally
sanctioned, for example, in self-defence, to prevent atrocity or to protect the vulnerable. In
global governance this is now a major discussion. For instance, is war acceptable to prevent
“rogue states” from acquiring nuclear weapons or other weapons of mass destruction, to punish
unacceptable behaviour (such as the use of chemical weapons or treatment of certain groups), or
to prevent mass starvation or ethnic conflict? These are pressing issues. Examples of such issues
that come to mind at the time of writing include possible intervention in Syria (to deter the
additional use of chemical weapons and to protect civilians), possible intervention in Iran (to
prevent the development of nuclear weapons), possible intervention in East Africa (to prevent the
spread of terrorism), and possible intervention in the Central African Republic (to protect
innocent people). And, of course, as a result of practices during the War on Terror concerns
about torture have become increasingly serious.
If and how war and conflict can be justified have traditionally been determined using just war
theory; a tradition going back to St Augustine (fifth century) and St Thomas (thirteenth cen-
tury). Traditional just war theory distinguishes two doctrines: one concerns the reasons for
going to war (jus ad bellum), the other the conduct of war (jus in bello). According to this tra-
ditional distinction a war might be just but its means unjust, for instance by bombing civilians,
laying landmines and using chemical weapons.
The nature and limits of just war theory are considered in detail in Chapter 9 by Brian
Orend. He begins by outlining the three traditional approaches to the ethics of war and peace.
The first is realism, which assumes essentially that there are no ethical constraints to war and
conflict; the only requirement is one of doing what is in one’s own best interests. What matters
is power not ethics. The second is pacifism, which opposes all war, and regards the ethics of war

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as problematic from the outset. The third approach is that of just war theory and international
law (which often assumes “just war” premises), which is where the theoretical debate influences
and overlaps with actual political decision-making. For instance, questions mentioned above
about legitimacy and proportionality, questions which pepper the debate about current acts of
war, are pressing concerns in just war theory. Orend then discusses the possible principles of just
war theory in more detail using recent conflicts of Afghanistan and Iraq to explore these. In the
final section Orend considers terrorism.
Chapter 10 by Henry Shue explores torture. He considers the types of torture, practices of
torture and arguments surrounding torture in recent decades. Shue begins by documenting the
development of torture and torture techniques in the US; a place that he had thought, when
he began writing on the topic in the 1970s, had forsworn the practice. This serves to remind
the reader that torture is not rare practice, but planned and systematic. He then proceeds to
consider arguments and justifications for the practice of torture (practices that would at first
glance appear wholly unethical) and to this end he considers the “ticking-bomb scenario”. He
argues that this is not an adequate justification for torture. In the second half of the chapter
he turns to substantive arguments and looks at claims about “sophisticated interrogation.” Here
he considers whether by prohibiting torture we might at some point fail to attain some crucial
information which will result in terrifying consequences. In response to this Shue emphasizes
two key points upon which he finishes his chapter: first that there is no evidence to believe that
torture is the most effective form of interrogation; and second, that abandoning restraints on
torture bequeaths an even more barbarous world to our children.
Chapter 11 by Alex J. Bellamy considers humanitarian intervention – which for some is the
most ethical of all wars and for others is a contradiction in terms. In this chapter Bellamy considers
the ethics of the practice of humanitarian intervention, taking examples from Liberia in 1990,
through Haiti, Rwanda and Kosovo, among others, to Libya in 2011. In order to explain and
evaluate humanitarian intervention Bellamy suggests “a way of thinking about different perspec-
tives on humanitarian intervention in relation to two critical questions, one about the nature of
world politics … and the other about which type of actor should be privileged.” In other words
what do we think the aim of world politics should be, and who matters – individuals or states?
Bellamy then proceeds to use these two questions throughout the rest of the chapter to frame
the debate, which he divides into five sections. In the first, he uses his two questions as axes to
plot different possible positions; this results in four main clusters of views (optimistic/state-
centred, tragic/state-centred, optimistic/people-centred and tragic/people-centred). The next
four sections then go on to explore each of these clusters and their likely acceptance of and
commitment to humanitarian intervention. He concludes by noting a general trend away from
a state privileged view; at least he claims that the assumption that states should always be pri-
vileged no longer dominates and that there is some coherence, evidenced in the emerging
commitment (at least in theory) to the doctrine of Responsibility to Protect. He finishes by
emphasizing uncertainty with regard to the future of humanitarian intervention.
In Chapter 12 Douglas P. Lackey addresses the nuclear threat. As with many of the other topics
discussed in the chapters of this section, particularly terrorism and torture, it is hard to see how the
nuclear threat can even be justified using the traditional framework of just war theory. For
instance, the use of nuclear weapons would seem never to be proportionate. However, even
though their use is arguably always prohibitive this does not exhaust the discussion, as significant
ethical discussion surrounds the ethics of amassing nuclear weapons even if they are not used.
Lackey focuses the chapter on the usefulness and the justice of the non-proliferation treaty.
Lackey begins the discussion with the global aims of non-proliferation and the assumptions
which lie behind the aim to reduce the proliferation of nuclear weapons (both in terms of the

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counties which have such weapons and the number of weapons which countries have). He then
evaluates considerations of utility in the first half of the chapter and considerations of justice in the
second half of the chapter. In considering utility he asks whether the assumptions about non-
proliferation are correct. Did the non-proliferation treaty in fact reduce both the number of
countries with weapons and the size of the arsenals of those who have the weapons? He then
considers the arguments connected to justice, most particularly whether the non-proliferation
treaty is unjust. There are a number of reasons one might consider, including that the treaty is
exclusive, benefiting only the previously imperialist powers, that it carries increased risks for those
who do not have nuclear weapons, and that the possession of such weapons is neither general-
izable nor equitable. Lackey’s conclusion is that on balance the non-proliferation treaty has
benefited humanity, but that this benefit is not huge, is questionable and needs to be qualified.

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9
WAR AND TERRORISM
Brian Orend

War is well defined as an actual, intentional and widespread armed conflict between groups of
people (Orend 2013). This is true whether these groups are within one country (civil war) or in
different countries (classic international warfare). “Armed conflict” means the use of weapons and
physical violence with the intention of inflicting harm upon people, trying to coerce them into
doing whatever one wants. As Clausewitz said, war is “an act of violence, intended to compel our
opponent to fulfil our will”. War is like a duel, he concluded, “only on an extensive scale”
(Clausewitz 1995: 10–11). There have been over two hundred wars (thus defined, and with a
minimum of a thousand battlefield deaths) in the last hundred years alone. So, on average, there
are two new wars every year. As of writing, there seem to be, around the world, about twelve armed
conflicts ongoing (Harrison & Wolf 2009).
Armed conflict has a massive impact on all our lives. It shapes the fate of nations, alters the
course of history, consumes enormous resources, determines who is in control and, obviously,
causes much death and destruction (Keegan 1994). How should we think about “the ethics of
armed conflict”? Or is this an oxymoron (like “deafening silence”)? The purpose of this chapter
is to explain what dominant traditions of thought have had to say about the morality of war
(and terrorism), using current and historical case references to illustrate the relevant ideas and
values.
There are three basic, and influential, perspectives on the ethics of war and peace. They can
be diagrammed, crudely, on the following continuum:

Extreme Middle Extreme

Realism International law/just war theory Pacifism

Each of these traditions has something very important and influential to say about the ethics
of war and peace. Let us begin by looking at the extremes, to get a better fix on the middle,
which tends to be the more commonplace, or majority, understanding (if not always the pre-
vailing practice).

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Realism
Realism is the view that, as a country, your goal should be to advance your own country’s national
interests. National interests are those things that improve, benefit or enhance the position of one’s
country in the world. Realism is like a form of national egoism or selfishness. When dealing with the
outside world, or “the international community”, one ought to (as they say) “look out for number
one!” Do the best you can for your own society, especially in terms of national security and defence,
growing your economy, population and access to natural resources, and augmenting your cultural
and political influence around the world. At minimum, realism insists that you’ve got to protect what
you’ve already got; and, at most, you should get as much as you can and, in fact (if it is possible), try to re-
make the world in your own image. In terms of war, realism adheres to the doctrine of “anything goes”.
Realists usually believe that there is no such thing as “the ethics of war and peace”: it is all about
power and protecting one’s country. And, since history teaches us that few things are worse for a
people than losing a war, it follows that people are going to feel free to, and should feel free to, use
whatever means at their disposal to try to win. As the old saying goes, “all’s fair in love and war”.
(Note that some realists are risk-favouring, whereas others are risk-averse, when it comes to debating
the most advantageous thing to do in terms of using armed force on behalf of one’s country. Some
are quite aggressive, others quite cautious.) Prominent realist thinkers would include Machiavelli and
Hans Morgenthau. Prominent realist politicians would include Henry Kissinger and former US
President Richard Nixon (Morgenthau 1970, Kissinger 1995, Machiavelli 1998).

Strengths and weaknesses

In terms of strengths and weaknesses, one need only look at history to realize that realists paint a
plausible picture of how states and peoples actually tend to behave during wartime: “looking out for
number one” even seems to put it mildly. Also, smart governments need to fear the risk of “being
suckered” by less scrupulous players on the international stage: soft-mindedness and kind-
heartedness can sometimes lead to harmful results. Finally, few people can deny that one of the
most basic purposes of a national government is to protect its own people, especially from the
kinds of suffering, and foreign attack, which war typically involves.
At the same time, many view realism as unbearably cynical: if everything is indeed this ultra-
competitive struggle over power and resources, how is the world supposed to get any better? In
other words, there’s not enough idealism in realism. Others have noted how realism’s obsession with
power props up the status quo, and is biased in favour of the most powerful. More bitingly, in
terms of war, many have pointed out that realism actually seems a recipe for escalation in war-
fighting: the lack of trust and jostling for power lead to war; and then one belligerent tries a
controversial tactic, and then the other replies. Not to be outdone, the first does something even
stronger, and then it is a “race to the gutter” in terms of tactics and measures. This, critics say, is
the true, ugly face of the “anything goes” attitude: total warfare. Indeed, some have noted that
the “anything goes” permissibility offered by realism may be a seductive psychological motive in
favour of its belief: it is not so much that it is true, or that it is good advice but, rather, that
people want to be free of moral constraints, especially in such stressful circumstances as armed conflict.
But constraints nevertheless prevent a spill-over into total warfare, and serve plausible, and
laudable, goals of reigning in war’s destructiveness (Forde 1992, Mapel 1996, McMahan 1996).

Pacifism
At the other extreme is pacifism. Different pacifists define pacifism differently, and offer various
kinds of justification for their beliefs. But it seems that what unites all forms of pacifism – the basic

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proposition, or lowest common denominator – is opposition to warfare. The logical core of

pacifism, as Jenny Teichman says, is “anti-war-ism” (Teichman 1986). No matter what kind of
pacifist you are, you believe that war is always wrong; there is always some better approach to the
problem than warfare. So, unlike realists, pacifists believe that it is possible and meaningful to
apply moral judgement to international affairs. In this, they agree with just war theorists (more
below). But they disagree with just war theorists regarding the application of moral judgement to
warfare. Just war theorists say war is sometimes morally permissible, whereas pacifists say war is
never morally permissible. If realism asserts that, during wartime, “anything goes”, pacifists rejoin:
“nothing goes”: there is always some morally superior option to war-fighting, such as non-violent resistance.
The most relevant (secular) pro-pacifist arguments here include the following: (a) a more “tel-
eological” form of pacifism (or TP), which asserts that war and killing are at odds with human
excellence and flourishing; (b) a more “consequentialist” form of pacifism (or CP), which
maintains that the benefits accruing from war can never outweigh the costs of fighting it; and (c) a
more “deontological” form of pacifism (or DP), which contends that the very activity of war is
intrinsically unjust, since it violates foremost duties of morality and justice, such as not killing
other human beings. Most common and compelling among contemporary secular pacifists, such
as Robert Holmes and Richard Norman, is a mixed doctrine that combines, in some way, all
three (Holmes 1989, Norman 1995).

Strengths and weaknesses

The obvious strength of pacifism is that it very much desires to secure a more peaceful world. No
lack of idealism here. And it is hard to disagree with the claim that war brings enormous costs and
casualties in its train, and is steeped in tragedy. And pacifism’s discussion of non-violent resistance
does open people’s minds to alternative, and additional, tactics to use when resisting nasty
regimes. Consider the following list of tactics offered by Gene Sharp:

general strike, sit-down strike, industry strike, go-slow and work to rule … economic
boycotts, consumers’ boycott, traders boycott, rent refusal, international economic
embargo and social boycott … boycott of government employment, boycott of
elections, revenue refusal, civil disobedience and mutiny … sit-ins, reverse strikes,
non-violent obstruction, non-violent invasion and parallel government.
(Sharp 2005: 254)

But what are some of the weaknesses? Michael Walzer, the just war theorist, contends
that pacifism’s idealism is excessively optimistic. In other words, pacifism lacks realism. More
precisely, the non-violent world imagined by the pacifist is not actually attainable, at least for the
foreseeable future. Since “ought implies can”, the set of “oughts” we are committed to must
express a moral outlook on war less utopian in nature. While we are committed to morality in
wartime, we are forced to concede that, sometimes in the real world against especially brutal
regimes, resorting to war can be morally justified (Walzer 1977).
Another objection to pacifism is that, by failing to resist international aggression with effec-
tive means, it actually ends up: (a) rewarding aggression; and (b) failing to protect people who
need it. Pacifists reply to this argument by contending that we do not need to resort to war in
order to protect people and punish aggression effectively. In the event of an armed invasion by
an aggressor state, an organized and committed campaign of non-violent civil disobedience –
perhaps combined with international diplomatic and economic sanctions – would be just as
effective as war in expelling the aggressor, with much less destruction of lives and property.

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After all, the pacifist might say, no invader could possibly maintain its grip on the conquered
nation in light of such systematic isolation, non-cooperation and non-violent resistance. How
could it work the factories, harvest the fields, or run the stores, when everyone would be
striking? How could it maintain the will to keep the country in the face of crippling economic
sanctions and diplomatic censure from the international community? And so on, perhaps citing
further from Sharp’s list above (Ackerman & DuVall 2000).
Though one cannot exactly disprove this pacifist proposition – since it is a counter-factual
thesis – there are reasons to agree with John Rawls (1971) that such is “an unworldly view”
to hold. For, as Walzer (1977) points out, the effectiveness of this proposed campaign of civil dis-
obedience relies on the moral scruples of the invading aggressor. But what if the aggressor is brutal,
ruthless? What if, faced with civil disobedience, the invader “cleanses” the area of the native
population, and then imports its own people from back home? What if, faced with economic
sanctions and diplomatic censure from a neighbouring country, the invader decides to invade it,
too? We have some indication from history, particularly that of Nazi Germany, that such pitiless
tactics are quite effective at breaking the will of people to resist. The defence of our lives and rights
may well, against such invaders, require the use of political violence. Under such conditions,
Walzer says, adherence to pacifism would amount to “a disguised form of surrender” (ibid.: 334–35).
Pacifists respond to this accusation of “unworldliness” by citing what they believe are real-world
examples of effective non-violent resistance to aggression. Examples mentioned include Mahatma
Ghandi’s campaign to drive the British Imperial regime out of India in the late 1940s and Martin
Luther King Jr’s civil rights crusade in the 1960s on behalf of African-Americans. Walzer replies
curtly that there is no evidence that non-violent resistance has ever, of itself, succeeded. This may
be rash on his part, though it is clear that Britain’s own exhaustion after the Second World War,
for example, had much to do with the evaporation of its Empire. Walzer’s main counter-argument
against these pacifist counter-examples is that they only underline his main point: that effective
non-violent resistance depends upon the scruples of those it is aimed against. It was only because
the British and the Americans had some scruples, and were moved by the determined idealism of
the non-violent protesters, that they acquiesced to their demands. But aggressors will not always be
so moved. A tyrant like Hitler, for example, might interpret non-violent resistance as weakness,
deserving contemptuous crushing. “Non-violent defense”, Walzer suggests, “is no defense at all
against tyrants or conquerors ready to adopt such measures” (ibid.: 335).

International law and just war theory

In between the extreme views of realism and pacifism resides just war theory. Like pacifism
(and unlike realism), just war theory believes that there is both sense and value in applying
ethics and moral values to issues of international relations. But unlike pacifism (and like rea-
lism), just war theory believes that there can sometimes be instances where resorting to war is
justified, if only as “the least-worst” option. Thus, if pacifism says “nothing goes” with regard
to the ethics of war, and realism declares that “anything goes”, just war theory opines that
“something, sometimes, goes”. While war can be morally permissible, just war theory never-
theless views war dimly and dangerously, and insists that it is too risky and lacking in restraint to
allow for “anything goes”. Just war theory seeks to substitute, for that realist permissiveness, a
set of sensible rules to restrain and guide those considering warfare as a tool for solving some
serious foreign policy problem. The just war approach has been deeply influential on the
international laws of armed conflict, for instance as contained in the Hague and Geneva
Conventions, as well as in the United Nations (UN) Charter and the various resolutions of the
UN Security Council (UNSC) (Reisman & Antoniou 1994). To be crystal clear: just war

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theory refers to the prior moral tradition, with a pedigree stretching all the way back (at least) to
the ancient Greco-Romans, whereas international law refers to agreed-upon contractual
treaties between national governments (and most such treaties regulating warfare date only
from about 1850 forwards). They are thus separate things; but the point here is that the content
of the laws, and even their general structure, has been heavily influenced by just war theory,
and so we can put just war theory and the laws of armed conflict together, for our purposes, as a
tightly related bundle of concepts and values, sporting a shared outlook on how countries and
peoples ought to behave during armed conflict.

Jus ad bellum
Jus ad bellum is Latin for “the justice of war”. When, if ever, may states fight? The just war answer
is that states may fight only if they satisfy all of the following rules: just cause; right intention;
public declaration of war by a proper authority; last resort; probability of success; and pro-
portionality. (Like the other traditions above, there is pluralism and some interpretive dispute as
to the exact and best meaning of these rules within just war theory.) Those with “the war power”
(usually the executive branch in non-democratic societies, and the legislative branch in demo-
cratic ones) are to ensure they satisfy these principles before embarking on war.

Just cause
The way international law renders just war theory in this regard is very clear and quite helpful.
Most experts agree that, when it comes to a just cause for war, three general principles are at play:

All countries have the inherent, or “natural”, right to go to war in self-defence from aggres-
sion. (Aggression is defined as any unjustified first use of armed force against another coun-
try. Any armed attack which crosses an international border constitutes aggression and is a
casus belli, that is, “a cause for war”.)

All countries have the further natural, or inherent, right of other-defence – otherwise known
as “collective security” – to go to war as an act of aid, or assistance, to any country victi-
mized by aggression.

Any other use of force – for example a pre-emptive strike, or armed humanitarian inter-
vention (AHI) – is not an inherent, or natural, right of states. Any country wishing to engage
in such is supposed to get the prior approval of the UNSC. Failing to receive such prior
authorization renders any such use of force illegal, itself an act of aggression (Roberts &
Guelff 1999, Orend 2012).

So, if country A commits an armed attack against country B, then B (and any other country C) is
entitled to go to war against A as an act of defence from, resistance to and punishment of aggression.
Aggression is seen as a wrong so severe that war is a fitting response because it violates the most
basic rights of groups, and individuals, to life and security, and to freedom and well-being: that is,
to go about their lives peacefully, on a territory where their people reside. Classic examples of
international aggression include: Imperial Germany’s invasion of Belgium in 1914, sparking the
First World War; Nazi Germany’s invasion of Poland in 1939, sparking the Second World War;
Japan’s invasion of China in 1937, and its attack on the US at Pearl Harbor in 1941, sparking
the Pacific part of the Second World War; the USSR’s invasion of Afghanistan in 1979; and
Iraq’s invasion of Kuwait in 1990, sparking the Persian Gulf War. There are actually thousands of
historical examples of international aggression (R. K. Grant 2008).

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Proportionality
In every kind of law or rule, there is supposed to be a proportion, or balance, between problem
and solution (or between violation and response). What, if anything, might be a problem truly so
severe that war is a proportionate response? The answer of international law and just war theory
(for reasons stated above) is: aggression. When confronted with an aggressive invader – like Nazi
Germany, Imperial Japan or the Soviet Union – who is intent on conquering and enslaving other
nations, it is deemed reasonable to stand up to such a dark threat to life and liberty and to resist it,
and beat it back, with force if need be. Just as dangerous criminals must be resisted and not be
allowed to get away with their crimes, countries are entitled to stand up to aggressors, and to resist
and defeat them (Orend 2006: 59–61).1

Public declaration of war by a proper authority

War is supposed to be declared out in the open, officially and honestly, by the proper authority
for doing so. In every country, some branch of government has “the war power”: that is, the
authority to order the use of force and warfare. In Canada and Britain, the war power rests with
Parliament; in America, the war power likewise rests with the legislature: that is, Congress. But
the American President, as Commander-in-Chief of the Armed Forces, has enormous de facto
power to order the American military into action. As a result, many experts argue that the war
power in the US is actually split – in classic American “checks-and-balances” style – between the
legislative and executive branches of government.2 We have seen, further, how in all cases where
non-defensive armed force is being considered, the UNSC must also approve of the action, and
beforehand. This is to say that, with non-defensive war, both domestic and international author-
ization must be satisfied (Orend 2006: 50–57).

Last resort
State governments are only supposed to go to war as a last resort, after all other reasonable means
of problem-solving have been tried, and failed. It is said that countries have four basic tools in
their foreign policy tool-box: diplomacy, positive economic incentives, sanctions and force.
Obviously, you want to exhaust all other means of problem-solving before engaging in some-
thing as expensive, bloody and risky as war. A nice illustration of this rule in action happened
during the run-up to the Persian Gulf War of 1991. In August 1990, Saddam Hussein’s Iraq
invaded its tiny neighbour, Kuwait. International allies, as led by the US and UK, tried to talk to
Saddam and threaten him, to no avail. They offered him financial incentives, but he refused,
preferring to hold on to Kuwait’s oil fields. They then slapped sweeping sanctions on him, and
got most of his neighbours to agree and also put pressure on Iraq. Still nothing. As a result, the
international community felt it was the last resort to go to war to push Saddam out of Kuwait,
and back into his own borders. This they did, within two months, in early 1991 (Johnson &
Weigel 1991).
The above jus ad bellum rules are all part of the international laws of armed conflict (Best
1994). Just war theory, as a theory of ethics, levies two additional moral requirements.

Right intention
The notion here is that one’s motives need to be ethically proper. It is not enough merely that
one’s actions comply with the above rules but that, furthermore, one acts with the right frame of

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mind and, in particular, that seedy, ulterior motives, such as greed, play no role. In the case of a
just war, then, the idea would be that one’s intentions in acting are to resist, repulse and punish
aggression, and nothing more. Though this rule is not part of international law – largely owing to
the difficulty involved discerning the true intentions of a complex, multi-part actor like a state
government – it is, nevertheless, very frequently invoked in common moral discussion of warfare.
It was, for example, a popular criticism of the Bush Administration’s decision to invade Iraq in
2003 to suggest that the decision had as much, or more, to do with the desire to gain secure access
to oil as it did with, say, ensuring that Iraq was not about to deploy weapons of mass destruction
(WMD) against the US (Orend 2006: 46–48).3

Probability of success
The rule here is that one should not begin a war one knows in advance is going to be futile. The
point is to prohibit pointless killing and suffering: one should have some probability of success before
resorting to war. At the same time, this can be very difficult to predict at the start of war, and
history has shown that, sometimes, long-shots can actually win. Moreover, this rule seems biased
in favour of powerful states, who (for that very reason) have better chance of winning their wars.
This probably explains the absence of this rule from international law, which is based around
theoretical ideals regarding the equality of sovereign states: if a country – any country, big or
small – has been victimized by aggression, who are we to say that they should not go to war,
because at the outset it looks like such a risky venture (Orend 2006: 58–59)?4

Two quick recent applications of jus ad bellum

Many experts felt that the recent war on Afghanistan was justified, according to the above
criteria, whereas the war on Iraq was not. The war in Afghanistan was justified because it was a
response to America being attacked by the terrorist group al-Qaeda on 11 September (“9/11”)
2001. It was quickly determined that the then-government of Afghanistan, the Taliban, was
offering state sponsorship – safe harbour, protection and resources – to al-Qaeda, and as a result
was complicit in the 9/11 act of aggression. America was thus seen as exercising its right of self-
defence when it went to war in late 2001, and overthrew the Taliban regime in early 2002. The
twenty-eight other countries who joined in were seen as offering other-defence, or collective
security (Corbin 2002, Barfield 2009).
By contrast, in March 2003, America launched an anticipatory attack, aimed at changing
the regime in Iraq. We have seen above that, when it comes to cases other than self- or
other-defence, a country is supposed to get prior permission from the UNSC. America failed
to secure such, and thus most international law experts view the resulting war as having
lacked legitimacy. America tried to argue instead that the attack was needed as an act of
“pre-emptive self-defence”, alleging that Saddam was plotting with remnants of al-Qaeda to
give them WMD and have them strike the US. Most countries did not believe this argument
(as the secular dictator Saddam and the religious fanatics al-Qaeda would have made very
strange bedfellows), and the fact that Iraqi WMD were never found only called into deep
further question the justice of the start of this war (McGoldlick 2004). Now, there is a range
of opinion as how best to interpret the law and just war theory on these points and cases.
Though the above may be a common view, not all agree. But what does seem almost entirely
agreed to – among those within this tradition – is how just war theory and international
law provide a rich and appropriate moral framework for having these kinds of discussions
intelligently and usefully.

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Jus in bello
Whereas we saw above that the rules of jus ad bellum are aimed at those with the war power, the rules
of jus in bello are aimed at soldiers and officers: those who actually do the fighting. If they violate these
rules, they can find themselves – after the conflict – facing war crime charges, either domestically
through their own military justice system or internationally through The Hague (Walzer 1977:
40–156). And by far and away the most important, strongly worded and repeatedly mentioned and
codified principle in this regard is that of discrimination and non-combatant immunity.

Discrimination and non-combatant immunity

“Discrimination” here means the need for fighters to distinguish, or discriminate, between legit-
imate and illegitimate targets, and to take aim only at the former. A legitimate target is anyone, or
anything, which is part of the war machine of the enemy society. “The war machine” refers to the
military–industrial–political complex that guides the war and fights it. Loosely speaking, it is
anything which is a source of potential physical harm, or armed force, directed against oneself.
More specifically, legitimate targets include: soldiers, sailors, marines, pilots and their officers; their
weapons and equipment; their barracks and training areas; their means of transportation; their
supply and communications lines; and the industrial sites which produce their supply. Core political
and bureaucratic institutions are also legitimate objects of attack, in particular things like the
Defence Ministry. Illegitimate targets include residential areas, schools, hospitals, farms, churches,
cultural institutions and non-military industrial sites. In general, anyone or anything not demonstrably
engaged in military supply, or military activity, is immune from direct, intentional attack. Thus, non-
combatants – that is, civilians – are “immune” from intentional attack. This is seen as probably the
worst war crime: the intentional killing of civilians (Orend 2006: 105–40).
Strange as it may sound, the non-combatant immunity principle does not mean that it is
illegal for civilians to die in wartime. What is illegal is taking deliberate and intentional aim at
civilians with armed force. If a fighting side has taken every reasonable effort to avoid and
minimize civilian casualties, but some civilians still die accidentally, or in the indirect way just
noted, then that is not a war crime. Such civilians are viewed as “collateral damage”: accidental,
unintended casualties of the fighting. An example would be an air-bombing raid on an enemy’s
industrial sites, during which a few bombs accidentally go astray and hit a close-by residential
area, wounding and killing some civilians.5
So, civilians are only entitled to “due care” from fighters; they are not entitled to absolute and
failsafe immunity from warfare.6 What does “due care” include? It includes all serious and sus-
tained efforts, from the top of the military chain of command down to the bottom, to protect
civilian lives as best as possible amid the difficult circumstances of war. So, for example, strate-
gists must make their plans with an eye to minimizing civilian casualties; intelligence needs to
be gathered and analysed regarding which are the permissible targets; soldiers need to be trained
exhaustively in proper – that is, restrained and discriminating – ways of fighting; any rough
treatment of civilians needs to be investigated and punished; and so on (Walzer 1977: 40–156).
What about so-called “dual-use” targets? The question arises: what about things used both by
the military and civilians during war, such as roads, bridges, radio and TV networks and trans-
mitters, railway lines, harbours and airports? International law forbids targeting them but, in rea-
lity, they often are, as they are so useful in helping military planners communicate with their
troops and to move them around to where they are needed to fight. More controversial, and thus
more criticized, is targeting basic infrastructure, like farms, food supply, sewers, water treatment
plants, irrigation systems, water pipelines, oil and gas pipelines, electricity generators, and power

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and telephone lines. The civilian population pays a huge price for any damage inflicted on such
vital social infrastructure, and so it seems to violate civilian immunity to go after them. America
did this twice recently. During the opening days of both the 1999 Kosovo War and the 2003 Iraq
attack, America launched a so-called “shock and awe” campaign – relying on air power, bombing
raids and cruise missiles – to inflict heavy damage on basic infrastructure (especially communica-
tions and electricity) in Serbia and Baghdad, respectively. The military goal of such a strike is to
hit the enemy as fast and furiously as possible, dazing them, and “softening them up” for a sub-
sequent ground invasion by army soldiers. It is also to shock the civilians in that society into
putting pressure on their regime to give up and surrender quickly (Ignatieff 2001b, Clark 2002).

Prisoners of war and benevolent quarantine

It follows from the idea of non-combatant immunity that, should enemy soldiers themselves
cease to be a source of harm during war – for example, by laying down their weapons and
surrendering – then they cannot be targeted with lethal force after that point. In fact, they are to
become prisoners of war (or POWs) offered “benevolent quarantine” for the duration of the war.
“Benevolent quarantine” means that captured enemy soldiers can be stripped of their weapons,
incarcerated with their fellows and questioned verbally for information. But they cannot, for
example, be tortured during questioning. Nor can they be beaten, starved or somehow medically
experimented on. They cannot be used as shields between oneself and the opposing side; the
understanding is that captured enemy soldiers are to be incarcerated far away from the front lines.
And very basic medical and hygienic treatment is supposed to be offered: things like aspirin, soap,
water and toothbrushes. When it is all over, they are then usually freed in exchange for POWs on
the other side (Orend 2006: 105–59).

Proportionality
The jus in bello version of proportionality mandates that soldiers deploy only proportionate
force against legitimate targets. The rule is not about the war as a whole; it is about tactics within
the war. Make sure, the rule commands, that the destruction needed to fulfil the military
objective is proportional to the good of achieving it. The crude version of this rule is: don’t
squash a squirrel with a tank, or shoot a fly with cannon; use force appropriate to securing the
target (Walzer 1977: 129).

Prohibited weapons
There is a vast number of relevant conventions and legal treaties on this issue, aside from the
canonical Hague and Geneva Conventions, such as those banning the use of chemical (1925 and
second protocol 1996), biological (1972) and “excessively injurious weapons” (1980). Also
relevant are the conventions against genocide (1948), against “methods of warfare which alter the
natural environment” (1977) and banning land mines (1999). Prohibiting certain weapons puts an
added restriction upon belligerents and, as such, is consistent with the deepest aim of jus in bello,
namely, to limit war’s destruction (Reisman & Antoniou 1994).

Means mala in se
There is a traditional ban on “means mala in se”, or “methods evil in themselves”. The imprecise
yet interesting idea here is that some weapons and means of war are forbidden not so much

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because of the badness of the consequences they inflict but, more importantly, because they
themselves are intrinsically awful. Using rape as a tool of warfare, for instance, to drive a
population off a territory, or to reward one’s troops after battle, is a clear example. Rape is ruled
out not so much because of all the pain it produces, or because it is aimed at civilians, but because
the act itself is rights-violating, a disgusting disregard for the humanity of the woman raped: a
coercive violation of her bodily integrity and her entitlement to choose her own sex partner(s).
Rape was used as a tool of war both in the Bosnian Civil War (1992–95) and in the presently
ongoing war in the Congo in Africa. Methods like campaigns of genocide, ethnic cleansing, use
of child soldiers and torture probably also fall under this category of means mala in se (Allen 1996,
Orend 2002b, Danner 2004, P. Singer 2006).

Reprisals
Reprisals are not permitted in the laws of armed conflict. At the same time, they have happened
in history, and are rather frequently threatened during wartime. The reprisal doctrine permits a
violation of jus in bello rules – but only in response to a prior violation by the opposing side. Walzer
offers an example of what he labels a justified reprisal, and it focuses on proportionality and
prohibited weapons. He claims that Winston Churchill was “entirely justified when he warned
the German government, early in World War II, that the use of [poison] gas by its army would
bring an immediate Allied reprisal”. International law, for its part, disallows any reprisals, on
grounds that, more often than not, they will lead to a serious escalation in violence. One is
supposed to win well, so to speak: the pursuit of victory, but within the rules (Walzer 1977: 207;
Regan 1996: 172–78).

Emerging military technologies

There is a new category of weapons and methods of warfare, which have come to be known under
the umbrella term “emerging military technologies” (EMTs). These include: soldier enhancements
(notably drugs designed to augment one’s biological energy); incapacitating agents (designed to knock
out, but not kill, enemy soldiers); unmanned weapons systems (notably, drones); and cyber-warfare (the
use of advanced computer, and Internet, technologies to substantially harm the interests of a target
community). Since these are freshly emerging, international law is racing to keep up, and no clear,
agreed-upon rules have yet been structured. For instance, in 2011, America, China and Russia met
to try to craft a treaty regulating the means of cyber-warfare, only to have the talks fall apart amid
bitter mutual accusations. The ongoing, future development of jus in bello will include rules reg-
ulating the use of these new technologies (Dockery 2007; P. Singer 2009; Orend 2012: 186–245).

Interconnections
Traditionally, the categories of just war theory and international law, like jus ad bellum and jus in
bello, have been treated as separate, demanding the attention of different groups of people (e.g.
politicians the former, soldiers the latter). But, starting perhaps with Kant, and recently gaining
momentum with the works of David Rodin, Jeff McMahan and others, there is a definite body of
thought which calls this traditional separation into question, preferring to stress instead the robust
linkages which must exist between the categories. A notable point here is how the justice of the
start of the war in question seems to affect our judgements of everything else: how to describe a
jus in bello tactic, for example, as “proportionate”, unless one knows the overall justice of the war
whose objective it advances (Rodin 2005, McMahan 2011)?

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Overlapping
Retribution Rehabilitation
consensus

Figure 9.1 Overlapping consensus: theories of post-war justice.

Jus post bellum: aftermath

Substantially (and sadly) unregulated by international law (Orend 2000), we can only speak of
different theories of post-war justice. There are two major rival theories in this regard – retri-
bution and rehabilitation – though they do share some common ground.
Most people agree this common ground (or “overlapping consensus”) posits that the basic
goal of post-war justice is to vindicate the rights whose violation triggered the war to begin with, forcing
the defeated aggressor7 to accept a proportionate policy on surrender which includes:

public (as opposed to secret) terms of settlement;

mutual exchange of POWs at war’s end;

aggressor to apologize (for committing aggression);

aggressor to give up any unjust gains;

aggressor to de-militarize (so no short-term repeat of aggression is possible);

war crimes trials (jus ad bellum trials for the aggressor; jus in bello trials for all sides).
(Orend 2002a: 43–56)

Thick Theory 1: Retribution

So much for the thin theory of post-war justice and its general, and rather familiar, principles.
What of the more rebust, and controversial, thick theories, as depicted in Figure 9.1. Historically,
we tend to see two major rivals. The first one is that of retribution. Defenders of this model of
post-war justice have, as their goal, to make the defeated aggressor worse off than prior to the war
(as backward-looking punishment). The means to be used to achieve this include all elements of
the thin theory above, plus:

compensation payments from aggressor to victim, and possibly to the international com-
munity more broadly;

sanctions put on the aggressor, to hamper its future economic growth;

no aid, or assistance, with post-war reconstruction. Such is left up to the locals, with no
forcible regime change imposed on the aggressor.

Prime historical examples of the retribution model in action would be the Treaty of Versailles,
ending the First World War in 1918–19, and the terms ending the Persian Gulf War in 1991
(Orend 2000: 217–67).
Now, why does the aggressor need to be made worse off than it was prior to the war? The
defenders of this model suggest several reasons. First, it is thought that justice itself demands
retribution of this nature: the aggressor must be made to feel the wrongness, and sting, of the

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war which it unjustly began. Second, consider an analogy to an individual criminal: in domestic
society, when a thief has stolen a diamond ring, we do not just make him give the ring back,
say he is sorry, and take away his thieving tools. We also make him pay a fine, or send him to
jail, to impress upon him the wrongness of his conduct. And this ties into the third reason: by
punishing the aggressor, we hope to deter or prevent future aggression, both by him (so to speak)
and by any others who might be having similar ideas (Orend 2006: 160–90).

Thick Theory 2: Rehabilitation

The goal of this model, by contrast, is to make the defeated aggressor better off than prior to the
war (as forward-looking reconstruction). The means to be employed include all of the elements
of the thin theory above, plus:

no compensation payments;

no sanctions;

aid and assistance with post-war reconstruction, including forcible regime change imposed
on defeated aggressor.

Prime historical examples of the rehabilitation model in action would be the post-Second-
World-War (1945–55) reconstruction of West Germany and Japan, and today’s cases of
Afghanistan and Iraq (early 2002 and mid-2003, respectively, until 2013 or even, arguably, the
present) (Orend 2013: 215–50).
Where the two models of post-war justice differ is over three major issues. First, the rehabi-
litation model rejects sanctions, especially on grounds that they have been shown, historically, to
harm civilians and thus to violate discrimination. Second, the rehabilitation model rejects com-
pensation payments, for the same reason. In fact, the model favours investing in a defeated
aggressor, to help it re-build and to help smooth over the wounds of war. Finally, the rehabi-
litation model favours forcing regime change whereas the retribution model views that as too risky
and costly. That it may be, but those who favour the rehabilitative model suggest that it can be
worth it over the long term, leading to the creation of a new, better, non-aggressive, and even
progressive, member of the international community.8

Strengths and weaknesses

Just war theory and international law (JWT/IL) clearly carve out a more detailed and compre-
hensive account of the ethics of war and peace than either realism or pacifism. As such, they
enable a more finely grained and thorough analysis. While realists and pacifists might counter that
JWT/IL is thus rendered more complex, the JWT/IL reply would be that the subject matter itself
is quite complex and difficult, and hence simplicity in this regard is no virtue.
Realism views JWT/IL as actually being likely to create more wars than necessary, what with
its moral “crusading” and insistence on justice being done. Moreover, realists will assert that it is
just plain silly to prosecute a war “with one arm tied behind one’s back”, as it were, in adherence
to jus in bello. Modern JWT/IL, in reply, disavows any association with strident crusading and
insists that it only makes sense to limit war-fighting with sensible rules of restraint. The realist
alternative – unrestrained, total warfare – seems a recipe for humanitarian disaster (Welch 1993).
Pacifism, for its part, almost has more respect for realism, for at least the realist does not
pretend to be serving morality with his/her views on war, whereas the just war theorist does.
For the pacifist, the only morally acceptable opinion on these matters is pacifism, and thus the

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just war theorist appears morally distasteful. We have already seen the JWT/IL reply above:
the pacifist’s excess optimism about non-violence in our world – the real world – is what is
the true moral mistake, as it can quite predictably lead to: (a) the failure to protect those who
need it; and (b) rewarding aggression by default.
JWT/IL views itself as being more moderate and sensible, more detailed and less sweeping,
more rational and less extreme, than either of its rivals. It prides itself on being more realistic than
pacifism, yet not so “realistic” as to give in to the cynicism and ruthlessness of the realist world-
view. JWT/IL still insists upon moral rules and ideals, yet tries to responsibly tailor such to the
rough-and-tumble circumstances of actual geopolitics. It thus sees itself as having the best of both
worlds. Quite literally: JWT/IL borrows content from realism (especially regarding rules like
proportionality and probability of success) as well as from pacifism: for example, as witnessed
through the rule of last resort and the rehabilitation model of post-war justice (which is obviously
concerned with structural changes in favour of creating a less violent world). Critics view JWT/IL
as thus being “messy”, maybe even a grab-bag jumble of concepts and values, squished into the
“cramped quarters” between the two coherent options of realism and pacifism. But JWT/IL
prefers to see itself as occupying the big middle – the expansive, commonsense middle ground –
with the other two doctrines residing at the extreme fringes of opinion on these issues.

Application to terrorism
Terrorism is defined as the use of violence – especially killing force – against civilians with the
intent of spreading fear throughout a population, hoping that this fear will advance a political
objective. Crucial to terrorism is not just the deed itself but also what some have called “the
propaganda of the deed”. Since terrorists want to spread fear, it is vital that their deed not only
be terrible but be so terrible that it gets covered by media, and word/image about the threat
become disseminated throughout the population. The 9/11 attacks, for example, were clearly
motivated not just by the desire to kill civilians but also by the drive to maximize the propaganda
value of the high-profile attacks (Der Spiegel 2002, Sterba 2003).
Terrorism also gets used as a tool of authoritarian regimes to crush their own populations into
submission: for example, the dictatorship under Robespierre, during the French Revolution,
established the “Reign of Terror” (which I believe is the root source of the word “terrorism” in
Western vocabularies). The Reign of Terror, 1793–94, was when “Enemies of the Revolution”
were rounded up and, in a very deliberate, public, propagandistic way, given their own special
“close shave” by Mme La Guillotine. At the Terror’s peak, Robespierre had forty thousand people
guillotined in just one month.9 And terrorism gets used as a tool of extremist outsiders against
representative regimes. In this context, which is obviously where the 9/11 attacks fit, terrorism is a
violent attempt to circumvent such democratic processes as rational persuasion, coalition- and
consensus-building, the rule of law, and the will of the majority expressed in free elections. The
terrorist seeks to short-circuit all these things and simply inflict his will on a population, probably
because he knows his extreme beliefs would have no chance of achieving mainstream success. He
cannot persuade people, so he seeks to coerce them. The terrorist, in this sense, is actually much
like a tyrant, but without the power and control the tyrant already has. The terrorist is a tyrant-in-
waiting, and he dreams of becoming someone like Robespierre, who is able to radically re-fashion
all of society from the top down through what he views as the cleansing power of violence. The
personnel of al-Qaeda seem to fit this mould precisely (Corbin 2002, Berman 2003).
Whether terrorism, as a tactic, is consistent with any “-ism” or “-ocracy” is a difficult and
delicate debate. Fortunately, I do not have to resolve it here. From the point of view of both
pacifism and JWT/IL, terrorism is always an impermissible tactic, since it involves the deliberate

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killing of innocent civilians: which right-thinking people view as murder. Realists would not
frame the issue in moral terms, but would probably note how, historically, terrorism has not
proven massively successful in achieving its objective. And the reason is obvious: while it may
spread fear in the short term, over the longer term, people feel outrage at acts of terrorism, and
discover a new-found resolve in dealing with terrorists and not letting them have their way
through the use of such decrepit measures. For instance, 9/11 did not force America out of the
Middle East and North Africa: indeed, it began the War on Terror and has led to the direct fall
of at least two regional governments, and some even credit the War on Terror for indirectly
inspiring some of the popular, pro-democracy uprisings now known as the Arab Spring (Falk
2002, Eshtain 2003, Noueihad & Warren 2012).
It is important to note that either state- or non-state actors can commit aggression, which we have
seen is what roots, from the perspective of JWT/IL, a morally justified resort to war. Consider
the 9/11 attacks, which were clear instances of aggression. They involved the use of armed
force, first to hijack the planes and then to use the planes themselves as high-powered missiles.
They violated America’s right to territorial integrity, in so far as they were lethal attacks on
American soil, having penetrated American airspace. And they violated America’s right of
political sovereignty, by attempting to force serious foreign policy changes upon a freely
choosing population. So 9/11 was an act of aggression, very reminiscent of Pearl Harbor, just as
it was obviously designed to be (“propaganda of the deed” and all). And aggression, we
explained above, justifies a defensive war in response.
But, likewise, the rules of JWT/IL remain relevant when it comes to permissible tactics used
in the War on Terror. We have seen, notably, that these include a ban on torture, and may
raise questions about the use of drone-strikes and extra-judicial killing. Thus, even though the
beginning of the War on Terror, in Afghanistan, seemed to be well founded, numerous ques-
tions can be raised about certain weapons and methods which have since been employed in its
name, and further questions need to be raised sharply about the endgame: what would be a
satisfying and acceptable “victory”, or end, in the War on Terror? Would the democratization
of the Middle East, through the Arab Spring, be the ultimate goal – or is the war seen instead as
a longer-term, Cold-War-style protracted conflict, decades in length, which demands ultimately
the eventual destruction of the opposing ideology and social system, in this case radical Islamic
extremism? The tools of JWT/IL, more than their rivals, can help decision-makers think
through their options in this regard (Orend 2013: 297–98).

Notes
1 Aquinas is often credited with bringing proportionality into just war theory: see Tooke (1975).
2 This became an issue of struggle between the branches during both the Korean War (1950–53) and
especially the Vietnam War (1954–74), when Congress felt successive presidents were running a de facto
war without actually publicly declaring it and getting de jure authority for doing so: that is, getting a
clear vote of support from Congress: see Regan 1996.
3 Augustine is seen as the inventor of right intention in just war: see Deane (1963). On Iraq, see, e.g.,
Murray & Scales (2003), B. Woodward (2004).
4 Grotius is considered the first proponent of probability of success: see Tuck (1999).
5 This raises the complex issue of the Doctrine of Double Effect. The core moral problem is this: even if
soldiers intentionally aim only at legitimate targets, they can often foresee that taking out some of these
targets will still involve collateral civilian casualties. And if civilians do nothing to lose their human
rights, does it not follow that such acts will be unjust, since civilians will predictably suffer some harm
or even death? The DDE stipulates that an agent A may perform an action X, even though A foresees
that X will result in both good (G) and bad (B) effects, provided all of the following criteria are met:
(a) X is an otherwise morally permissible action; (b) A only intends G and not B; (c) B is not a means

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to G; and (d) the goodness of G is worth, or is proportionately greater than, the badness of B. For
more, consult P. Woodward (2001).
6 Pacifists object loudly to this, and argue that, since modern war-fighting always involves civilian
casualties, this shows it to be an intrinsically corrupt practice.
7 The assumption is that the Aggressor who began the war is defeated. This does not always happen in
the real world, of course, but, in those cases where Aggressors win, post-war justice does not get
realized; and thus the idealizing assumption. See Orend (2002a).
8 To those who scoff that such deep-rooted transformation simply cannot be done, supporters of the
rehabilitative model reply that, not only can it be done, it has been done. The two leading examples
are West Germany and Japan after World War Two. But difficulties with imposing this model on the
more recent cases of Afghanistan and Iraq give ammunition to supporters of the retribution model,
who view attempts at rehabilitation as too costly, lengthy, and even questionable in principle, as such
involves the imposition of such values as human rights. Defenders of rehabilitation reply that such
values are genuinely universal, and bound over the long term to result in a more peaceful world
(Orend 2006: 190–220; Kant [1795] 1983).
9 Mind you, in the end things turned out badly for Robespierre, getting the guillotine himself (Laqueur
1987, 1999).

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