Justice In Asymmetric Wars: A Contractarian Analysis

JUSTICE IN ASYMMETRIC WARS:A CONTRACTARIAN ANALYSIS

Yitzhak Benbaji*

This paper aims to extend the contractarianism in just war theory to the case of asymmetric war of independence. Its main thesis is that within asymmetric wars, the traditional rule of noncombatant immunity has no contractarian justification:it systematically discriminates against the weak part to the conflict, and thus it isunfair. On the other hand, a rule that allows those who take themselves to be freedom fighters to threaten civic life, yet prohibits deliberately targeting individuals, is fairand mutually beneficial. The branch of the war convention I called “justice inasymmetric war” instructs militants to treat civilians as if they bear no personal responsibility for the evil that their society causes.

*Associate Professor, Tel-Aviv University Faculty of Law. I would like to thank Aslï Bali, Corey Brettschneider, Michael Brin, Owen Fiss, Matthew Goldin, Paul Kahn, Saad Ibrahim, Seth Lazar, Naz Modirzadeh, Eric Posner, Tommie Shelby and especially Amichai Cohen for helpful comments.

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Justice in Asymmetric Wars: A Contractarian Analysis

INTRODUCTION

The rules of war draw a distinction between attacks that target combatants, military bases, and munitions factories on the hand, and attacks deliberately targeting civilians and civilian infrastructures, on the other hand. They also distinguish between collateral damage caused to civilians in the course of targeting soldiers and military bases and direct or intentional targeting of civilians and civil society. Indeed jus in bello—the code to which soldiers in war are subject— is incomprehensible without these distinctions.1

According to the “standard explanation,” the intentional killing of civilians is wrong regardless of its consequences: noncombatant immunity is “a reaffirmationof the morally foundational ‘no-harm’ principle. One ought generally not to harm other persons. Non-combatant immunity says one ought, most emphatically, not to harm others who are themselves not harming anyone. This is as fundamental, and as straightforward, and as nearly non-controversial, as moral principles can get.”2

The permission to impose collateral damage on enemy civilians—the side effect exemption—is harder to explain. After all, killing civilians who do not pose a threat to others is presumptively wrong. Philosophers, however, advanced a standard explanation of this distinction as well: Intentional killing, which involves using civilians as a means to an end, is especially wrong, and therefore, usually impermissible. In contrast, in war, the unintentional killing of innocents might quite often be justified by “lesser evil” considerations. To (over)use a familiar example, suppose that the tactical bombing of a munitions factory will kill a group of civilians. This, however, would be a side effect, and harm to civilians would be proportionate to the good caused by destruction of the factory. In such circumstances, the tactical bombing in question would be permissible. Laws of war fully adopt the intentionality/foreseeabilty distinction; they distinguish between tactical and terror bombing (whose explicit purpose is killing civilians). Since intentional killing is particularly wrong, targeting civilians is forbidden, even in those cases the terror the bombing would produce might shorten a just war, and would prevent a large number of civilian casualties on both sides.3

1 For two authoritative texts that analyze what I call here the “war convention,” see YORAM DINSTEIN, WAR, AGGRESSION, AND SELF-DEFENCE (1988) and MICHAEL WALZER, JUST AND UNJUST WARS (2d ed. 1992) [hereinafter WALZER, JUST AND UNJUST WARS].

2 Quoted in Igor Primoratz, Civilian Immunity in War: Its Grounds, Scope, and Limits, in CIVILIAN IMMUNITY IN WAR 21 (2007). See MICHAEL WALZER, Terrorism and Just Wars, in ARGUING ABOUT WAR 51 (2004) [hereinafter WALZER, Terrorism and Just Wars]; C. A. J. COADY, TERRORISM, JUST WAR AND SUPREME EMERGENCY, IN TERRORISM AND JUSTICE: MORAL ARGUMENT IN A THREATENED WORLD 9 (C. A. J. Coady & Michael O’Keefe eds., 2002).

3 See WALZER, JUST AND UNJUST WARS, supra note 1, at 151-52.

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As many writers have observed, the standard explanation of the rule of non-combatant immunity faces at least three difficulties. First, the distinction betweencivilians and soldiers is collective; it cannot be grounded in facts about harmfulness (or responsibility) of individuals. Indeed, many civilians that the war convention protects from intentional attack are culpable for the evils against which just wars are waged. Second, the harm principle cannot be the basis for the permission to target combatants, many of whom cause no harm and bear no responsibility for the evils against which a just war is waged. Third, the side effect exemption—the distinction between intentional killing and perfectly foreseeable yet unintentional (side effect) killings—has lost much of its popularity among philosophers and theorists of criminal law. To many, it seems that an ethically coherent jus in bello that permits collaterally harming civilians cannot categorically prohibit anti-civilian tactics.4

In light of these difficulties, some thinkers offered a conventionalistinterpretation of jus in bello code in general and of noncombatant immunity in particular. According to their view, the moral standing of the rules of war is derived from an agreement between decent states that aim to protect their citizens’ vital interests. This view—which I refer as “contractarianism”— notes that the moral importance of civilian/combatant distinction is grounded in two facts: first, theparties undertake the duty not to deliberately attack civilians, and second, this is the fairest and most efficient way to minimize harm (to innocents) in war.5

This essay further develops the contractarian approach to justifying the jus in bello code by making three points. First, it considers civilians who are culpable for the wrong against which a just war is waged. The worry I try to relax is that,

4 Philosophers suggest that the permissions and prohibitions in war can be explained in terms of the ethics of self defense. See, e.g., JEFF MCMAHAN, KILLING IN WAR (2009); but see DAVID RODIN, WAR AND SELF-DEFENSE (2002), which rejects it. Both, Rodin and McMahan, agree that Walzer’s attempt to explain what’s wrong with killing civilians fail: See Jeff McMahan, Killing in War: A Reply to Walzer, 34 PHILOSOPHIA47 (2006); David Rodin, Terrorism without Intention, 114 ETHICS 752 (2004).

5 The modern version of this view has been presented in George I. Mavrodes, Convention and the Morality of War, in INTERNATIONAL ETHICS 75 (Charles Beitz, Marshall Cohen, Thomas Scanlon, & A. John Simmons eds., 1985). Cf. Jeremy Waldron, Civilians, Terrorism, and Deadly Serious Conventions, in TORTURE, TERROR, AND TRADE-OFFS ch. 4 (2010). I developed a version of this view in Yitzhak Benbaji, A Defense of the Traditional War-Convention, 118 ETHICS 464 (2008); The War Convention and the Moral Division of Labour, 59 PHIL. Q. 593 (2009); Contractarianism and Emergency, in UNDERSTANDING PROMISES AND AGREEMENTS: PHILOSOPHICAL ESSAYS (Hanoch Sheinman ed., 2011), and The Moral Power of Soldiers to Undertake the Duty of Obedience, 122 ETHICS 43 (2011). My version, as well as Waldron’s, is based on DAVID LEWIS, CONVENTION 97 ff. (1969).

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since ontractarianism presents the killing of these civilians as mala prohibita, it is wrong in a merely technical sense. I argue that, despite appearances to the contrary, the contractarian analysis of the rules of war entails (what Jeremy Waldron calls) a “deadly serious” moral duty to follow them.6 Violating the rule of noncombatant immunity is equivalent to violating the victim’s moral right against killing, even in cases where the victim in question is culpable.

Second, contractarianism renders the moral standing of the noncombatant immunity rule context-dependent. However serious it is to violate this rule in circumstances in which it applies, there are many circumstances in which the rule does not apply. Indeed, the combatants/civilians distinction collapses in wars of independence that meet the asymmetry conditions that I present below.7 This is because a civilian-immunity based in bello regime systematically discriminates against freedom fighters, who fight asymmetric wars of independence, by denyingthem a fighting chance. Under the contractarian approach to the laws of war, thenon-combatants immunity rule must be replaced in such circumstances. 8

The third claim I defend is that a careful analysis of the contractarian approach to the laws of war reveals the basic duty to which those who take themselves to be freedom fighters are subject. This rule utilizes the ethics of self defense as aconceptual framework and commands treating all individuals—soldiers and especially civilians—as if they bear no personal responsibility for the evil against which a just defensive war is waged. In particular, with respect to civilians, it commands treating them as innocent bystanders. Still, in order to deter civil society from perpetuating occupation and colonization, freedom fighters are allowed totarget civil society, i.e., violate its public space, by destroying buildings, streets and public institutions, in those rare cases in which this is necessary for attaining (what they believe to be) a legitimate goal. Notwithstanding this leniency, militants ought to do whatever they can in order to avoid killing or harming enemy civilians (while attacking the civil society of which these civilians are a part).

I. THE MORALITY OF THE WAR CONVENTION

I begin by presenting the basic idea that motivates the contractarian approaches to the rules of war, along with the different manners this basic idea is substantiated

6 Waldron, supra note 5.7 See infra Section IV.8 Asymmetric wars are not necessarily wars between states and non-states actors. Hezbollah

might well be stronger than Lebanon, and Somalia might well be weaker than military organizations acting in its territory. In at least some contexts, it might be rational to become a non-state actor. For reasons I present shortly, I deal with independence wars that involve very sharp power inequalities.

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in the contractarian literature. According to all versions of this view, the rules of war justifiably disregard facts about moral responsibility of individuals. Thus, theyprotect civilians who, as a matter of “deep morality,” would be liable for killing in war by virtue of their culpability for the evils against which the just war is waged. The rules allow killing of soldiers, even those who fight for a just cause. Theserules are justified, and the parties are justified in accepting them, if the outcome offollowing these rules is better than any other feasible outcome, with respect to the relevant moral value.

Different versions of contractarianism disagree regarding the relevant moral value that the rules of war are supposed to protect. In a widely cited paper, George Mavrodes argues that noncombatants are immune from direct harm in war by virtue of an implicit contract which aims to minimizing harm that wars cause. Rationally-led states would be interested in deciding the conflict between them with minimumlosses. Agreeing on the in bello code, which immunizes noncombatants, is a simple way to achieve this goal.9

According to McMahan’s analysis, rather than minimizing harm per se, in immunizing civilians from intentional killing, decent states aim to minimize undeserved, unjust or wrongful harm. Still, this goal is achieved by immunizing all civilians from intentional attack, culpable civilians included. To see why, suppose that some civilians are culpable for the injustice against which a just war is waged and as such are liable for killing or harming in war. Still, in most cases, the culpable civilians (who may be killed, according to deep morality) would erroneously believe enemy civilians to be culpable for an evil against which a just war is waged. They would infer that deep morality permits killing these civilians. Predictably, therefore, under a regime that allows killing culpable civilians, more innocent civilians would be killed. In instituting a regime that simply enforces rules of deep morality, states would produce more undeserved harm, rather than less. 10

Walzer’s rich argument against terrorism has a clear contractarian aspect as well. In an article co-authored with Avishai Margalit, Walzer argues that “[w]ars between states should never be total wars between nations or peoples. The crucial means for limiting the scope of warfare is to draw a sharp line between combatants and

9 Mavrodes, supra note 5.10 As McMahan puts it: “It is in everyone interests that such conventions be recognized and

obeyed. Given that general adherence to certain conventions is better for everyone, all have a moral reason to recognize and abide by these conventions. For it is rational for each side in a conflict toadhere to them only if the other side does.” See The Ethics of Killing in War, 34 (1) PHILOSOPHIA 693, 730 (2006). It is important to note that due to similar considerations, McMahan believes that adequate laws of war will protect soldiers from criminal prosecution even if they are partaking in an unjust war.

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noncombatants. This is the only morally relevant distinction that all those involved in a war can agree on.” I take seriously their claim that civilians are presumed to be innocent bystanders. In some cases, this presumption can be defeated, but even in these cases, civilians retain their immunity. Walzer and Margalit imply, in effect, that the immunity of non-combatants is conventional—it is commanded by the morally optimal arrangement. Walzer however points to a further value that the laws of war embody, namely: the value of national self determination, which, on his view, is the basic value of the international law. Under a regime that immunizes civil society,“[w]hatever happens to [the] two armies, whichever one loses or wins, whatever the nature of the battles or the extents of the casualties, the ‘peoples’ in both sides must be accommodated at the end.”11

All contractarian accounts of non-combatants immunity understand civilian immunity as arbitrary in at least two distinct senses. First, and most obviously, these accounts imply that there might be a different arrangement that could have attained the goals of the system. Second, and more importantly to my argument here, contractarianism allows for a gap between the rights conferred on individuals by the war convention—their conventional rights within war, as it were—and the “natural rights” they possess, by virtue of their human dignity. Again, civilians might be responsible for the injustice against which the just side is fighting; deepmorality might imply that they are liable to killing because of that. They regain their immunity due to the contractual relations that states create by agreement.

II. WHY IS IT WRONG TO VIOLATE A CONVENTION?

How wrong is it to violate the convention that immunizes civilians who are culpable for the evil of colonization, in circumstances in which colonization is an evil against which a just war is waged? The sentiment philosophers like McMahan and others invoke, is that killing culpable civilians is not exactly wrong in the same manner murder is wrong, but wrong more as “a technical matter.”12 In articulating this sentiment, McMahan argues that intentionally harming civilians in war might be morally permissible if the following three conditions are met. First, the direct harm they suffer is necessary for attaining a just cause; second, proportionate to the degree to which they are responsible for the injustice against which the just war is waged. And, third, the particular violation of noncombatant immunity won’t significantly compromise future compliance with it. Put differently, McMahan’sbasic conviction seems to be this: even in cases in which targeting culpable civilians

11 WALZER, Terrorism and Just War, supra note 2, at 7.12 Waldron, supra note.

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might be morally wrong, their killing does not involve a violation of a moral right that they possess against such an attack. At first glance, McMahan’s “purist” viewmight seem compelling: Culpable civilians have no such right. They lost it in virtue of their culpability for the wrong against which the just side fights. After all, thelaw that immunizes these civilians is merely a convention.13

This brings us to the first point this essay argues: The purist attitudetoward fair conventions in general, and toward the war convention in particular is misguided. Purism underestimates the moral significance of being protected byfair and mutually beneficial conventions. To understand why, consider a contrastbetween two cases, Accident1 and Accident2. In Accident1, you violate one of the most basic traffic rules: You drive on the left hand side. You do so, however,for a very good reason. As a result of an unexpected incident violating this rule is necessary for your survival. Now, it turns out that if you continue to drive on the left, you are going to hit another driver who is currently driving according to the rules. There is, I think, a clear moral asymmetry between you and the other driver. The other driver has a moral claim that you comply with the law that, in these circumstances, protects his vital interests rather than yours. The fact that the driving convention is arbitrary and that complying with it would severely harm your interest, does not change this intuitive verdict.

Contrast this with Accident 2. You drive on the right-hand side in accordance with the driving convention. You realize, however, that if you continue to do so, you’ll certainly hit a driver who faultlessly breaks the law and drives on the left. The other lane has collapsed, owing to a mudslide, perhaps, and the other driver cannot drive on his side of the road. Finally, suppose that it turns out that you cannot move to the other side of the road without yourself falling into an abyss. In Accident2, the other driver has no claim against you that you avoid hitting him. The distribution of the moral rights and duties in both cases parallels the distribution of burdens and benefits that the law commands.

13 McMahan The Ethics of Killing in War, supra note 10, at 735. As a number of authors noted, this argument is worryingly close to the one used by terrorists. “Although [McMahan] tries to rebut bin Laden’s arguments, their similarity to his own is inescapable: American noncombatants are permissible targets because they are responsible for the wars that their governments fight. Theyvote for those governments, pay the taxes that buy the weapons, produce, sustain and support the combatants who do the fighting. McMahan responds that bin Laden’s argument is flawed … responsibility must rise to a higher level to justify liability…. “ Yet, “the claim about responsibility thresholds is inconsistent with McMahan’s other arguments, according to which even a slight degree of moral responsibility is sufficient for liability. [Thus,] if the liability bar is raised to protectnoncombatants, it will also protect many combatants (Seth Lazar, The Responsibility Dilemma for Killing in War: A Review Essay, 38 PHIL. & PUB. AFF. 180, 212 (2010).

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Of course, these judgments are controversial. To present a powerful objection to them, consider Accident 3, where the reason I am driving on the left is that you intentionally blew up the hillside and caused my lane to crumble. That is, you are responsible for the fact that I am forced to drive on the left. In this situation, the driving convention seems irrelevant—I have a right to drive on the left even if this involves hitting you. Why, then, is the driving convention significant forthe distribution of rights and duties in Accident1 and 2, where responsibility or culpability cannot ground any moral difference between the two drivers?

I don’t try to resolve this objection here. Rather, I argue that my judgments with respect to Accidents1 and 2 properly extend Judith Thomson’s theory of the right of self-defense.14 I concede that they are inconsistent with the view advanced by Thomson’s opponents: Michael Otsuka, Jeff McMahan, and others whose various theories base the right of self-defense on considerations of distributive justice. Elsewhere, I have defended a Thomsonian approach to self-defense.15

According to Thomson, you have the right to kill a person in self-defense if he would otherwise kill you while holding no right to do so. According to her, a person who constitutes a threat might be totally non-responsible for the harm that he is about to impose. For instance, in the so called “Psychotic Aggressor” case you have the right to kill an aggressor even if he attacks you just because he hallucinates that you are attacking him; he is liable to defensive killing even if he became an aggressor through no fault of his own. Or consider the “Innocent Threat” case: you are sitting on a bench, and for some cause, a man falls on you—someone pushed him, he lost his balance, or some other factor is involved. Unfortunately, unless you blow him to pieces, he will smash you. Thomson argues that you have the right to defend yourself against such an innocent threat. True, the falling man does not mean to intentionally kill you by his action; rather, he would still kill you in the sense that a stone can kill you by falling on you. And he has no right to do so.

Some philosophers find this conception of rights-violation intuitively odd. How can it be—it is often asked—that a person violates his duty without doing anything? The falling man would kill you in the same sense that a stone would kill you; however, it sounds inappropriate to claim that a stone infringes upon the right you hold against it, that it won’t threaten your life.16 Yet, I do not find here

14 Judith Jarvis Thomson, Self-Defense 20 PHIL. & PUB. AFF. 283 (1991).15 Yitzhak Benbaji, Culpable Bystanders, Innocent Threats and the Ethics of Self-Defense,

35 CANADIAN J. PHIL. 585 (2005), the following paragraphs heavily draw on material from this Article.

16 Noam Zohar, Collective War and Individualistic Ethics: Against the Conscription of ‘Self-Defense, 21 POLITICAL THEORY 606, 608-09 (1993); cf. Michael Otsuka, Killing the Innocent in Self-Defense, 23 PHILOSOPHY & PUB. AFF. 74 (1994).

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any genuine difficulty. I violated my duty to stay off your apartment even if I wasbrought there while I was sleeping. This is because, as opposed to stones, I am subject to some duties by virtue of being an agent. It does not follow that all violations of my duties essentially involve agency.

Turn now to the intuitive responses I offer to Accident1 and Accident2. These judgments presume an asymmetry between the drivers that is analogous to the asymmetry between the victim and the falling man in Innocent Threat. Like the falling man, the driver who poses a lethal threat because of (faultlessly or justifiably)driving on the left violates a moral right that the other driver holds against him. His violation is the basis of the defensive right that the potential victim holds.

Now, Thomson’s critics argue that the right of self-defense is grounded in distributive justice: by shifting to the aggressor an inevitable harm, which the victim would otherwise suffer, the defender enforces a just distribution of harm.17 And, I suggest, that the objection to my judgments regarding Accidents 1 & 2 reject these intuitive responses on the grounds of a distributive-justice-based conception of self-defense. The objector complains that the killing of an individual who faultlessly violates the driving convention does not enforce justice in the distribution of harm. I totally agree. I observe, though, that the defensive killing of the falling man in Innocent Threat does not enforce justice in the distribution of harm as well; and, on the Thomsonian conception of rights violation, it is still the case that the victim’s claim against killing was violated. My judgments draw an analogy from driving on the left hand side in Accident1 and 2 to the falling of the man in Innocent Threat.

The intuitions that these examples reveal support a general moral conjecture: If a rule is accepted within a community, and it is an element in a mutually beneficialand fair institutional scheme, then the expectations generated by the fact that the rule is followed by almost everyone are morally effective. That is, these expectations effect the distribution of moral rights and duties. The convention that support the expectations are, to use Waldron’s term, deadly serious; they determine the scope of individuals’ right not to be killed.

But consider a different objection to my judgments, according to which the lesson to be drawn from Accident1 and 2 ought to be much more limited. For, in the circumstances described in Accident1 and 2, there are no natural rights in play; the moral reasons are determined by institutions, which e.g., solve coordination problems, when it is arbitrary how that coordination problem should be solved (within a range of equally efficient options). But this is not the case in war: War isa scenario with a moral substrate in which institutions do not do all the moral work.

17 Jeff McMahan, Self-Defense and the Problem of the Innocent Attacker, 104 ETHICS 252 (1994).

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Hence Accidents 1 & 2 cannot support the general claim that killing a noncombatant who is partly responsible for an unjustified threat is wrongful, merely because itbreaches a convention. Accident 3 evidences this: If it is your fault that a forced choice between our lives has come about (as in Accident 3), then, I am justified inshooting your front left tire, even if this would cause you to fly off the hillside.

I disagree: It is simply not true that in Accidents 1 & 2 there are no natural rights in play. Quite contrary, since both drivers are totally faultless they both hold a right against each other not to be killed by the other. If the distribution of rights changes just because one of the drivers violated the driving convention, then the moral weight of the convention must be substantial. That is, if a faultless violation of a convention causes an innocent to lose her right not to be killed, then, the convention that immunizes culpable civilians might generate a moral right against their killing. Note, moreover, that contractarianism does not deny a moral difference between killing culpable civilians and killing innocent civilians. It merely asserts that targeting culpable civilians in wars constitutes an infringement of their moral rights; it asserts, more specifically, that since noncombatant immunityis the accepted rule, and it is part of fair and mutually beneficial code, it is hardto overstate the moral seriousness of violating it. This notwithstanding, killing civilians who are not responsible for the wrong against which a just war is waged, might be worse.

The fundamental question is still pressing, however: how could a mere convention have such a moral impact? To answer this question I put forward a conjecture that, if true, illuminates the moral standing of fair conventions. Consider a standard contractarian formula: a person is wronged if she is treated in a manner that she can legitimately lodge a legitimate complaint against. Now, I submit that if you had expected that I won’t disadvantage you and your expectation from me is morally reasonable, then, if I did disadvantage you, you have a reason to complain. This complaint—I further suggest—is immediately translated into the language of rights: You have a claim against me that I should not frustrate your morally-reasonable expectations from me. Morally reasonable expectations are, according to this move, a source of bipolar claims and directional duties—ethical concepts that belong firmly within the family of contractarian ideas.18 In particular, in those events that your convention-based expectations are that you won’t be harmed by my violation of the law, in violating the law I inflict on you harm to which you are not

18 This sketch is indebted to LEWIS, CONVENTION; STEPHEN DARWALL, THE SECOND PERSON STANDPOINT: MORALITY, RESPECT AND ACCOUNTABILITY (2004); and to contributors to a symposium on Darwall’s book: Jay Wallace, Reasons Relations and Commands, 118 ETHICS 24 (2007); and Gary Watson, Morality as Equal Accountability, 118 ETHICS 37 (2007).

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liable. That is, I violated your moral claim (which you hold against me in particular) that I won’t harm you. I hope to argue this general conjecture elsewhere.

III. FAIR CONVENTIONS

So much for the first point this essays makes: contractarianism asserts that violatingnon-combatant immunity is a violation of the victim’s moral right. It constitutes a violation of a right, whether or not the victim is culpable for the wrong against which the just side fights. The second point of this essay, for which I argue inthe following two sections, is that the conventionality of non-combatant immunity renders its moral standing context-dependent. To repeat, social expectations are morally effective only if the social contract that the convention embodies is fair in addition to being mutually beneficial. Thus, if a regime does not benefit all parties,or if, in the circumstances, it unfairly discriminates against one of the parties, there is no general moral duty to respect it. The rules of war confer moral immunity on civilians of whom deep morality asserts that they are liable to killing in war, only if the social expectations that the rules will be followed are morally reasonable.

Are the expectations that the accepted regime sustains meet this requirement? In the next section I aim to describe wars of which the answer is negative and explore the relevant notion of fairness that I employ there. This section partly addresses the following question: What is it that makes an accepted rule, an accepted code, a convention or an accepted arrangement, fair (or unfair)? A systematic account is, of course, far beyond the scope of this essay, but we can put forward some fairly simple constraints that, intuitively, fair rules satisfy in virtue of their fairness.

The jus in bello code prohibits targeting civilians, even if they are responsible for the evil against which a just war is waged. It, however, permits targeting soldiers, even if they bear no responsibility for the injustice against which the just war is waged. Yet, “it is bad for some to be worse off than others through no fault or choice of their own. This is because, typically, if one person is worse off than another through no fault or choice of her own, the situation seems comparatively unfair ….”19 And, the in bello code allows bringing about situations that seem unfair: It allows disadvantaging soldiers, who did nothing by virtue of which they

19 Larry S. Temkin Egalitarianism Defended, 113 ETHICS 764, 767 (2003). The source of inspiration is, of course JOHN RAWLS A THEORY OF JUSTICE (1971). For some of the most important discussion of unfair inequalities, see John Rawls, Social Unity and Primary Goods, in UTILITARIANISM AND BEYOND (A. Sen & B. Willliams eds., 1982); Ronald Dworkin, What is Equality, Part 1: Equality of Welfare, 10 PHIL.& PUB. AFF. 185 (1977). G. A. Cohen, On the Currency of Egalitarian Justice, 99 ETHICS 906 (1989), and Richard Arneson, Equality and Equality of Opportunity for Welfare, 55 PHILOSOPHICAL STUD. 77 (1989).

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lost their right against being harmed, but it protects civilians—some clearly liable to defensive killing in virtue of their culpability for unjust threats.

Still, the fact that a regime causes unfair inequalities does not necessarily render the regime in question unfair, for, usually, the fairness of the regime is assessed from a relevant ex ante perspective. To see why, consider Accidents 1 & 2 again. In both cases the rules of driving discriminate against the driver who faultlessly breaks them. In fact, they allow harming a person through no fault of her own. Notwithstanding, it seems that the rules of the road might be fair as far as they command a fair distribution of the expected benefits and burdens. A universal compliance with them mightgenerate unfair disadvantages, but the chances to suffer these disadvantages are fairly distributed. In this sense, the in bello code is fair if, from the rulemaking standpoint, it is expected to minimize the harm to innocents, without systematically discriminating against individuals in one of the warring parties.

To present a second condition that a fair regime meets, let us take another look at the Mavrodes analysis of non-combatant immunity. In his view, noncombatant immunity is justified by the benefits that the warring parties secure due to the nearlyuniversal compliance with it. But, as Mavrodes notes, a different set of rules, whose acceptance would produce a better outcome with respect to human welfare, is easily imaginable. Under the imagined regime, military conflicts are to be decided by aduel between two chosen representatives, one of each party. This arrangement best attains the purpose of the Mavrodes convention, i.e., reducing wars’ violence and death toll. Mavrodes appeals to a famous biblical precedent: The Philistines call upon the Israelites to choose a representative to fight against Goliath; the parties agree thatthe duel will decide the results of the conflict between the two nations. (Interestingly,however, the war developed from this duel was as bloody as any other war.)

Mavrodes correctly observes that states would not be able to live up to fighting wars by duels. However, he offers no reason for why this seems so self-evident. And yet, the reason is simple: States accepting the Goliath convention know in advance that they might be required to surrender even if they fight a justwar and their chances of winning the war in question are high. The convention alters their chances of winning, irrespective of the justness of either party. I assume (again, with no argument) that such feature of a war convention makes it unfair. In other words, agreeing not to target noncombatants is like boxers agreeing to wear padded gloves. Each is able to do less damage to the other, but each also suffers less at the other’s hands. It is fair in that it constrains each side equally: though both sides are subsequently denied important opportunities for military advantage, they are denied them to the same degree.20 On this conception of fairness, the non-

20 The analogy was offered to me by Seth Lazar (personal communication).

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combatant immunity based convention is fair only if “were [it] to come into force, [a party fighting a rule governed war] could expect to win and lose … in aboutthe same proportion as it could … expect to win and lose [a total] war. The same types of questions would be settled by [a rule governed war] as would otherwise be settled by [a total] war ….and approximately the same resolutions would be arrived at”.21

Contrast, then, the Goliath convention on the one hand, and the noncombatants-immunity-based jus in bello regime, on the other. The latter is designed on the basis of a crucial assumption. Namely: the chances of winning a rule-governed war—in which civilians enjoy immunity from intentional attacks—is roughly equal to the chances of winning a war in which civilians are legitimate targets. Victory is conditional on many factors besides military power: in particular, political will and popular support are crucial even when the relevant party retains comparable military power. Still, states occupying the rulemaking standpoint (are entitled to) assume that an agreement that prohibits targeting civilians or civil society does not randomly change the chances of victory. They assume, in other words, that in most cases, whoever loses a war in which civilians are protected from direct attack would have lost a war in which civilians are legitimate targets and that a defeat in a total war is much more costly to both sides.22

Is this generalization reasonable? At least three caveats are in place here. First, the fact that in a small minority of chess games, the loser had enjoyed a material advantage does not undermine the relation between material advantage and victory: material advantage is a good predictor of victory in chess, despite the exceptions. Likewise, the fact that attacks against civilian population might, in exceptional cases, advance a just and less costly victory is irrelevant: the generalization on the basis of which a legislator determines the rule of noncombatant immunity might have exceptions.

Second, the Second World War is an example of a war in which attacking civilian targets conferred significant military advantage. The Allies engaged insustained bombing against civilian targets, while professing dedication to the rules of war that prohibited such attacks. Supposedly they assume that abiding by the war convention would alter their chances of winning. It might be thought, therefore, that Second World War is a counterexample to the generalization on the basis of which the noncombatant immunity was accepted. Yet, this objection misunderstands the

21 Mavrodes, supra note 5, at 12522 The contractarian account does not imply that states comply with in bello norms only

because the chances of winning a rule-governed war are roughly equal to the chances of winning a war in which civilians are targets. Rather, it leaves this factual question open. Clearly, in the real wolrd, some countries observe the rules because of secondary concerns like international pressure.

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contractarian interpretation of non-combatant immunity that I develop here. The assumption that the chances of victory in a total war are roughly equal to the chances of victory in a rule governed war is consistent with a further assumption; namely, if one of the sides had no respect to the rule that condemns targeting civilians, then the party that does respect this rule might be severely disadvantaged. Accordingly, contractarianism asserts that a party is under duty toward the other party to respect the constraints imposed by the non-combatants immunity war convention, only if the other party respects it, and is constrained by it to the same degree.

Finally, the generalization presents the distinction between military objects and civilian objects as flexible and problematic. Modern military power is highlydependent on civilian economic power. In the industrial age, war is largely an economic function, especially if the adversaries are close in terms of military and economic strength. Attacking civilian targets relevant to industrial output is therefore not ancillary to the war’s outcome in state-on-state conflicts, and mayeven be decisive in some cases. A number of strategists and historians believe that the Allied strategic bombing campaign against the German industrial heartland was decisive in the Second World War. Contractarianism implies that if avoiding the attack on targets that are relevant to the industrial output is essential to victory, or if immunizing these targets randomly alters the chances of victory, then they should be considered as military objects rather than civilian objects. Alas, this strategic reality produces a tendency toward escalation, which might ultimately end in a total war.23

Let me sum up this aspect of the notion of fairness. As the boxing analogy makes clear, contractarianism rejects arguments for noncombatant immunity that try to show that respecting this rule is costless, or even beneficial. This wouldunderestimate its force as a moral principle, and is anyway descriptively inaccurate. Contractarianism suggests that in agreeing not to target noncombatants, each side is able to do less damage to the other, but each side also suffers less at the other’s hands. This is, then, another aspect of the notion of fairness I employ. Agreements that regulate force are fair only if they avoid subjecting the parties to rules that, if accepted, would randomly alter their chances of victory.24

A fair contract meets two further conditions: Its terms are not dictated by unfair inequalities, and compliance with these terms does not create or solidify unfair inequalities. Basically, the idea is Rawlsian: consenting to the terms of an agreement is morally effective (that is, the consent of the parties to the terms of the agreement is waiving their moral rights and undertaking moral duties) only if the background circumstances against which the contractual relationships were created

23 I owe these observations to Michael Brin (personal communication).24 According to Seth Lazar (personal communication).

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are fair (with respect to the negotiated issues). If this condition is met, a contract is morally binding thanks to the justice of the procedure that had led to it: being fully informed of the relevant facts, the parties freely consent to the terms of the agreement. Further, a contract might lose its moral validity because “the conditions for free and fair agreements [might] be eroded over time through the uncoordinated interaction of agents.”25

To illustrate the context dependency these conditions imply consider the legal system that outlaws aggression, allows national armies to enforce the prohibition on aggression, and immunizes civilians from direct attack in war, as a contract between decent states. It follows from this assumption that its moral standing is context-dependent: against favorable background circumstances, where power relations are not radically unequal, the law maintains a fair status quo. Not so in a world with huge power inequalities, in which the strong states are morally unrestrained. Under such circumstances, the current regulations of using force are to be analogized to a contract between masters and slaves, where the slaves subject themselves to the duty to comply with the masters’ orders, while, in return, the masters undertake the duty to avoid violent coercion.26 The rules of jus ad bellum allow those states that are powerful to force those that are weak to make changes to their government, accept military bases in their country, export products, exploit their workers, and bribe rulers.27 After all, these exploitative actions are not recognized as just causes for war. To the contrary, the laws of war allow powerful states to use force against weak states that wage war in order to stop their exploitations. The other branch of laws of war, i.e., the jus in bello code, deepens these unfair inequalities, as it allows powerful states to use force in order to perpetuate exploitation, without putting their own citizens under the risk of being directly attacked by poor states. It might be argued that the legal system that governs the society of states perpetuates an unjust status quo. 28 Whether or not this is indeed the case is an open question.

25 Miriam Ronzoni The Global Order: A Case of Background Injustice? PHILOSOPHY & PUB. AFF. 229, 237-38 (2009).

26 See DAVID GAUTHIER, MORALS BY AGREEMENT ch. VII (1986).חסרה הערה 2728 In a nutshell, this is realism, with respect to international law. International politics is

“[an] autonomous realm of power in which the actions of nations are neither motivated by ethical considerations nor subject to ethical judgment”? Marshal Cohen, Moral Skepticism and International Relations, in INTERNATIONAL ETHICS 3, 13 (Charles Beitz, Marshall Cohen, Thomas Scanlon, and A. John Simmons eds., 1985). Importantly, fairness and Pareto efficiency (mutual benefit) are logicallyindependent features: Both parties the masters and the slaves benefit from the agreement, as bothsides will prefer peaceful oppression (masters do not use force; slaves comply without suffering violence) to a violent oppression (slaves are violently coerced to comply with the masters’ order).

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By insisting on fairness, contractarianism entails that the master/slaves agreement is morally ineffective, because the original bargaining position is unfair. The contract is obtained by might rather than by right. The prohibition to rebel against the masters’ exploitation might be an aspect of a mutually beneficialagreement to which both sides adhere, and by accepting it, the parties generate expectations that the agreement won’t be breached. Still, the agreement is unfair so these expectations fail to be morally reasonable. Hence, they do not confer on the masters a moral right against the slaves’ rebellion. In those rare cases in which the slaves can use force in order to overthrow the masters from power in relatively low cost, the agreement that prohibits rebellion does not create any serious moral constraint.29

IV. FAIRNESS, NONCOMBATANT IMMUNITY AND ASYMMETRIC WARS

A. WARS OF INDEPENDENCE MIGHT BE JUST

A morally coherent jus ad bellum implies that a systematic denial of the right of self-determination of a people is a just cause for war: It might confer on communities a defensive right to wage wars of independence (in some circumstances, and subject to various criteria).30 This is suggested by the 1977 Additional Protocol I, of which argues Abraham Soffer, legal advisor to the State Department in the Reagan Administration, that it creates two classes of combatants: “those fighting [againstcolonial domination and alien occupation and racist regimes who] obtain prisoner-of-war status if captured, and immunity from prosecution from belligerent acts” and “those fighting for less favored political causes … [who] would not receivePOW status or immunity of prosecution from warlike acts” 31 The Finnish jurist, Jan Klabbers, candidly declares, “the criminalization of terrorism has not been (and cannot be) complete; in the corners of the minds of the members of the Security

29 Some theorists of international law believe that “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time” because of their fairness. For the statement of the facts see LOUIS HENKIN, HOW NATIONS BEHAVE 47 (2d. ed. 1979), quoted in Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YALE L. J. 25 99 (1997). Its explanation is that “states perceive the rule and its institutional penumbra to have a high degree of legitimacy. See THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS 7 (1995). See also Koh, Why Do Nations Obey International Law? 2628.

30 Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 [hereinafterAdditional Protocol I]. MICHAEL L. GROSS, MORAL DILEMMAS OF MODERN WAR 183 (2010).

31 GROSS, supra note 30, at 183.

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Council… there is still a tiny voice whispering that not all violence is by definitioncriminal because, after all, violence can be used for the noblest of purposes”32

Indeed, I believe that a society of states seeking to embody the value of self-determination should allow a people to protect its right to political independence, either by launching defensive wars (if the independence of its legitimate state is under unjust imminent threat), or by launching wars of independence (where the people’s right to self-determination is systematically denied). I suggest, moreover, that in effect, the imagined legislator, from whose standpoint the rules of wars of independence should be determined, might not be the forum of decent states, but rather the forum of decent peoples.

These claims are far from being trivial, and I won’t fully defend them here. I should like to address one fundamental challenge that a just war theory, which treats national liberation as a just cause for war, must address. Let me outline this challenge. The objector asserts that on the usual reading of the UN Charter, only states might have a just cause for war; a war of independence is, by definition,unjust. After all, the post World War Two Charter outlaws all types of war except wars of national-defense. The notion of national defense is complex and somewhat opaque—and yet, its relation to territorial integrity is clear: states are entitled to use force in defense of their territorial integrity. Moreover, it seems that the use of force is allowed for one cause only: undoing or preempting a military invasion to the territory of a legitimate state. On this reading, stateless nations (or peoples, or political communities) have no right to use force in order to achieve national liberation. They do not have a state whose borders they are entitled to defend against military intervention.

Yet, morally speaking, this reading of the Charter offers a deeply implausible conception of a just cause for war. It grants states a right to defend their borders by force, regardless of how poorly or unjustly its borders have been drawn. Worse, according to this reading, the Charter grants states a right to protect their territorial integrity by force irrespective of whether or not these states protect the rights of their subjects to self-determination. As an interpretation of the Charter, this reading is implausible, especially in light of the fact that the unhidden agenda of the United Nations after World War II was instituting a legal system that embodies not only the value of peace but also that of justice.

Thus, in understanding the nature of the rights that the UN Charter legalizes, and the way the UN jus ad bellum enforces them, we should, I think, appeal to Walzer’s powerful normative analysis of this scheme. Walzerain statism’s starting point is individualistic: The UN Charter, argues Walzer, protects the right of

32 Quoted in id. at 184.

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individuals to live in self-determined communities. A legitimate state is “owned” by a people (nation or a community) whose conception of good life is protected by the sovereignty of this state. Thus, protecting the right of individuals to live meaningful life is the value that grounds the right of collectives living within states to political self-determination. Indeed, in Walzer’s view, respecting the right of collectives to self-determination—a right that emerges from the right of individuals to their common conception of good life—is a moral value, which is, justifiably, the mainconcern of international law.33 John Rawls defends a similar normative analysis. “[…] People as corporate bodies organized by their governments now exist in some form all over the world”. Although “[h]istorical conquests and immigration have caused the intermingling of groups with different cultures ...” communities with “common sympathies, no matter what their source may be” are necessary for the implementation of justice.34

It is hard to overstate the weight of the value that, according to the Walzer-Rawls normative analysis, the international law attaches to the interest of individuals to live in a self-determined political community. An organized political community is “conceivably the most important good,” as it enables people to “share a way of life, developed by their ancestors, to be passed on to their children.”35 The right of individuals to create, change and improve their particular way of life is the basic value that the international law protects. There is, therefore, a clear sense in which legitimate states sustain a particular way of life. It is the state (or the political society) rather than the individual members of this society—that carries this value; hence, the special importance of the sovereignty of legitimate states.

For reasons that are yet to be explored, conferring on states a right to use force in defense of their territorial integrity is the best way to protect their sovereignty rights which, in their turn, protect the right of a community to self-determination. This suggests that a legal system that treats national-defense as a just cause for war ought to treat national liberation in the same way. Simply: if the law protects the right of peoples to self-determination by allowing them to protect their political independence by force, it ought to allow stateless peoples to use force in order to attain this basic good. Note that my claim here is normative. I acknowledge that as it is commonly interpreted, the right to self-determination is questionable in the positive international law. There might be good practical reasons for these hesitations. It is unclear when a people or a minority group should be characterized

33 WALZER, supra note 1, 62.34 JOHN RAWLS, THE LAW OF PEOPLES 24 (2001).35 Michael Walzer, The Moral Standing of States, 9 PHIL. PUB. AFF. 212 (1980); Ned Dobbos

A State to Call Their Own: Insurrection, Intervention, and the Communal Integrity Thesis, 27 J. APPLIED PHIL. 26 (2010).

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as stateless: In many cases, the collective rights of a minority can be fulfilled withinan existing state. The normative claim advanced here is modest. Namely—if the right of self determination of a people is denied, the war of independence it wages has a just cause. The war might fail to meet other conditions that just wars meet. 36

Now, as I argue in the next section, the requirement of fairness that contractarianism centralizes implies that, as far as the in bello code is concerned, wars of independence form a special category. Indeed, from the relevant rulemaking standpoint, there is a clear distinction between wars which states wage in order to maintain their independence, and wars of independence which people go to in order to attain political self-determination. For, even if symmetric wars between states are regulated efficiently and fairly by a noncombatant-immunity-basedin bello code (recall, whether or not it does, is an open question), it is easy to imagine circumstances in which communities fighting for their independence aresystematically discriminated against by such a code.

A. FAIRNESS AND ASYMMETRIC WARS

Let us, then, take a closer look at the rule of non-combatants immunity. On its surface, it requires that the warring parties will avoid deliberately targeting civilians and civil society. It has, however, other, less conspicuous aspects: First, it commands soldiers to wear uniforms and openly carry their weapons. That is, soldiers are required to identify themselves as such in order to enable their enemies to target them and to avoid targeting civilians that might surround them.37 Second, civilians should not be used for military missions. Otherwise the distinction between combatants and noncombatants will be undermined. Finally, noncombatant immunity prohibits targeting civilians, but allows unintentionally harming them. Indeed, noncombatant immunity is usually interpreted in light of the distinction that constitutes the doctrine of double effect: it permits foreseeable, proportionate side-effect harm to civilians and to civilian infrastructure, only if it is unintentional and indirect. Now, contractarianism takes this license very seriously. A rule granting

36 Once the principle of the inviolability of the borders of an existing state is rejected, other justifications could be advanced for changing borders: more equitable distribution of resourcesbetween neighboring countries, in order to eliminate poverty, and ranting sea access to a land-locked country are only two examples. As I argue in Territorial Integrity and Human Rights: A Contractarian Account of the Crime of Aggression (unpublished), these causes for borders changing are not just causes for war.

37 I won’t discuss this topic in detail, but note that according to Articles 42/43 of the Additional Protocol I (supra note 30), which lays the rules to which non-state actors and irregulars are subject, irregulars are not required to openly bear arms, and that a distinctive emblem is not obligatory.

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immunity to civilians and civil society from foreseeable harm would prevent armies from using aerial weapons, thus, seriously compromising their ability to target the military.

Clearly, in likely circumstances, the prohibition against targeting civilians in war systematically discriminates against nations fighting for their politicalindependence. This is demonstrated by Michael Gross’s rich description of modern warfare. In an important concluding section, Gross disapprovingly quotes Ignatieff’s requirements from freedom fighters to follow the usual rules of engagement. Ignatieff argues that

If we believe that their oppression is such that it justifies turning to violenceas a last resort, then the ethics of their struggle passes out of human rights and into the laws of war. These rules expressly forbid the targeting of civilians… To be sure, this limits the struggles for freedom. You cannot fight dirty; youmust take on military targets, not civilian ones …38

But, as Gross insists, in irregular warfare, the prohibition on targeting civilians “seems hopelessly naïve particularly when a group cannot take on military targets because there is none in range or they are too well protected.”39

Gross’s critique of the mechanical application of non-combatant immunity to irregular warfare appeals to the three aspects of this rule (which I have just detailed). It is easy to imagine situations where the duty to wear uniform—allegedly enabling the parties to retain the distinction between combatants and noncombatants—severely hampers the ability of freedom fighters to camouflage. In these circumstances,noncombatant immunity denies freedom fighters the ability to move and act: byfollowing it, they make of themselves easy targets for their enemies, practically paving the way to their own defeat. Simply, under the circumstances, the only effective survival tactic these freedom fighters have is hiding among civilians.

Turn now to the side effect exemption, according to which the warring armies are allowed to collaterally harm civilians and civilian infrastructure in the course of attacking military targets. Again, it is easy to imagine situations where, lacking the ability to attack military targets, the weak party does not at all benefitfrom this license. The military targets within range are well protected such that attacking them is pointless. Vulnerable military targets are simply too far away.

Finally, suppose that although the weak party is incapable of hitting military targets, civilian targets are within its reach. Imagine, that is, that the compliance

38 Michael Ignatieff, Human Rights, the Laws of War, and Terrorism, 69 SOC. RES. 1137, 1153 (2002), quoted in GROSS, supra note 30, at 199.

39 GROSS, supra note 30, at 199.

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with noncombatant immunity eliminates the weak party’s small chance of victory, while, despite being small, the weak party’s chance of victory is significantlyincreased in case it uses anti-civilian tactics. As Seth Lazar notes, empirical evidence suggests that this is the case in reality: “the distinctively psychological tactic of suicide bombing achieved some strategic success in 50% of campaigns between 1980 and 2003.” [T]hese campaigns succeed “by so sapping the political will of the authorities that a process of rolling concession is set in train.”40 The IRA’s terrorist attacks in the 1990s, and the 2004 Madrid bombing yielded success thanks to the public shock they caused. Specifically, the 2004 bombing (probably)led to an immediate shift in Spanish public opinion: Spanish voters overwhelmingly supported the opposition party, which contrary to the Spanish government at the time, was an outspoken critic of George Bush’s policy in the Persian Gulf.41

In irregular circumstances, compliance with the noncombatant-immunity rule makes it impossible for freedom fighters to use violence. If they can win atall, they can do so by terrorizing civilians. In case terror is necessary for victory, noncombatant immunity seems to discriminate against the weak side, especially in light of the permission to collaterally damage civilians and civilian infrastructure from which, de facto, only the strong party enjoys. Wars that satisfy the above conditions will be described here as “asymmetric” wars of independence; if Gross’s description of modern warfare is accurate, wars that meet these conditions are quite common.

In sum, the second point this essay makes can be put as follows. Contractarianism entails that, in asymmetric circumstance, (militants who believe themselves to be) freedom fighters are not constrained by the civilian immunityrule. To repeat, this is because we suppose that peoples whose right to sovereignty is systematically denied might permissibly use force in their struggle for self-determination. Following Gross, we assume further that asymmetric wars of independence in which the noncombatant immunity rule discriminates against the weak party are not exceptional. Contractarianism entails that if so, the war convention contains a separate code (we might call it “justice in asymmetric war”) which applies to freedom fighters in asymmetric wars of independence. If Gross’sfactual analysis is correct, the next section, which suggests a preliminary version of such a code, is of crucial practical importance.

40 The data and the quotes are from Seth Lazar, Asymmetric Warfare and Noncombatant Immunity (unpublished).

41 Id.

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V. JUSTICE IN ASYMMETRIC WAR

I argue in this section that the rules that constitute “justice in asymmetric wars” follow from the basic principle underlying the current war convention. This basic principle, known as “the independence principle,” asserts that the rights individuals have in war and the duties to which they are subject are insensitive to the justice of the war that they fight: “the justifiability of a [group] engaging in war is independentof the permissions and restrictions binding its troops.”42 Thus, an individual who fights or otherwise contributes to unjust war ought to be treated as if she justifiablybelieves that her cause is just.

In regular warfare, independence is implemented through symmetry: “normative permissions and restrictions binding co-combatants in a single conflictare identical.”43 The symmetry principle grounds two rules. First, noncombatant immunity: the convention immunizes civilians from direct attack. They are treated as if they are bystanders who constitute no unjust threat and bear no responsibility for the evil against which a just war has been waged. Second, soldiers are presumed to constitute a threat, hence they are liable to killing in war: If necessary for attaining a legitimate goal, their killing is permissible. Importantly, however, like civilians, soldiers are also presumed to bear no moral responsibility for the threat that they constitute. Cast in Judith Thomson’s terms, soldiers in war are treated by the convention as if they were innocent threats.44

Now, it is presumably true that in asymmetric wars of independence as well, the warring parties believe their war to be just. Arguably, therefore, fightingaccording to a code, which commands treating individuals as if they bear no personal responsibility for the evil against which a just war is waged, would minimize rights violation. Indeed, treating civilians as if they are bystanders who constitute no immediate threat and bear no responsibility for the evil against which the just war is waged would be the best way to go. But, how would a code, which treats civilians in this way, but also aims not to randomly alter the chances of the just party to

42 Christopher Kutz, Fearful Symmetry, in JUST AND UNJUST WARRIORS 69 (D. Rodin & H. Shue eds., 2008).

43 Id.44 This last observation—that soldiers are treated as innocent threats—is supported by at

least two legal facts. First, even though some soldiers carry out the crime of aggression, the rules of war prohibit treating them as criminals (unless they committed war crimes). Second, killing soldiers is prohibited where the aim of the killing is weakening an army that will surrender soon anyway. This is far from being trivial: killing soldiers is prohibited even if the potential victims wholeheartedly support the unjust war, and killing them will deter the aggressive state from future aggression. For a detailed argument see my The War Convention and the Moral Division of Labour.

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attain a just victory would approach asymmetric circumstances? In particular, can a fair war convention sustain the social expectation that freedom fighters will treatcivilians as if they were innocent bystanders?

The answer appeals to two subtle distinctions. The basic distinction is between civil society and the individuals that compose it. A society is not a mere sum of its members; it is, rather, a complex entity that is constituted also by social institutions, the complex of cooperative arrangements that these institutions enable, support and maintain, and the rule-governed relationships among them. A derivative distinction follows immediately: a distinction between harms inflicteddirectly on civilians and harms inflicted on the civil society and the public spacewhich constitutes it. Presumably, one can harm an individual without harming the civil society to which she belongs. And, one can explode an empty government building—thus, violating the public space in which civic life takes place—without intentionally killing or harming individuals.

With these distinctions in mind, consider wars of which it can be known ex ante (i.e. from the rulemaking perspective) that in order to realize the weak party’s slight chance of winning them, the weak party has to employ civilian tactics. To grasp the social expectations that the war convention supports in such circumstances, another factual assumption that our imagined legislator is entitled to make should be put on the table: anti-civilian tactics succeed only if and when they dramatically impact public opinion. “A key distinguishing feature of asymmetry … [is that] the target becomes the mind of the opponent, in particular the will of the antagonist.”45 Killing civilians, as well as sporadically (and thus military pointlessly) killing soldiers in asymmetric wars, is an aspect of psychological warfare, aimed to cause fear and demoralization that may bring about a profound change in public opinion.

Now, the war convention generates the social expectations that civilians would be treated as innocent bystanders, whose immunity from intentional attack is almost absolute. And, I suggest, warriors that target civil society—and, thus, treating society as if it is responsible for the evil against which they fight—wouldnot frustrate these expectations, if they were to treat members of this society as innocent bystanders. Are these conflicting attitudes to society, on the one hand,and to the individuals that compose it, on the other, consistent? I think so: consider freedom fighters who before exploding a government building, a financialinstitution, a school or a bridge, do whatever they can in order to warn civilians who might be harmed by these explosions, and let them escape. Such freedom fighters

45 See Kenneth F McKenzie Jr., The Revenge of the Melians: Asymmetric Threats and the Next, 62 QDR 2 (2000), quoted in Seth Lazar, Asymmetric Warfare and Noncombatant Immunity (unpublished).

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consistently manifest these attitudes. I, therefore, suggest that the war convention permits warriors of the weak side in asymmetric circumstances to target the public space within which civic life is conducted. It nevertheless obligates these warriors to undertake risks in order minimize the harms inflicted on civilians.

Wouldn’t such tactics undermine the argument made earlier in defense of the effectiveness of freedom fighter attacks on civilian targets? Wouldn’tadvance warning of attacks and efforts to warn civilians prior to attacks diminish the probability of success of such attacks? The example given above was suicide bombing campaigns, and the Madrid train attacks in particular: it might be thought that the evidence indicates that such campaigns are effective precisely because they terrorize a population by killing at random. But, I believe, that this is far from being clear. True, the Madrid attack generated fear, and the random killing involved in it was terrorizing. Note, though, that this causal fact is irrelevant to the issue at hand: the relevant question is whether the terror achieved by killing civilians could have been produced by other means, which does not involve intentional killing of civilians. Or, is the political effect that was achieved by targeting civilians could have been achieved without it. The fact that intentional killings of civilians are terrorizing does not entail that terror could not have been achieved in other ways. The vast majority of the violence used by insurgents is directed against the civilian population the insurgents seek to represent, in an explicit attempt to prevent the government from interfacing with the population, discourage collaboration, and punish cooperation with government forces. The conjecture offered here is that, usually, this can be done by intentionally targeting civil society, and that targeting civilians themselves is unnecessary for this legitimate goal.

The rule that permit attacks on civil society but prohibits targeting civilians is fair. This is mainly because, contrary to the rule of noncombatant immunity, which systematically discriminates against freedom fighters in asymmetriccircumstances, the immunities conferred on civilians by “justice in asymmetric wars” do not discriminate against the weak party to these wars. From the relevant ex ante perspective, their fighting chance is left intact. The argument for this lastclaim runs as follows.

It is reasonable to assume that treating civilians as innocent bystanders won’t decrease the weak party’s chances to enforce its legitimate claim for political independence. For, it can be assumed that, in most cases, freedom fighters capableof killing civilians by bombing a civilian building are capable of making sure that this building is empty; immediately after planting the bomb they can give warning about having done so. The impact that killing civilians attains can be attained without the killing. Needless to say, many will find this factual assumptionparticularly suspicious: the panic caused by bombing the building which hosts an institution like a school, is smaller than the panic caused by the killing students of

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this school. It should be recalled, however, that we focus on wars in which fightersaim to change public opinion in the international community and (simultaneously or subsequently) in the colonizing society. The perception that freedom fighters areable to undermine civil and economic life may bring about the desirable change. Note that pointlessly killing soldiers is less wrong: although the killings won’t bring a military defeat, killing men of arms, who can defend themselves, create more fear than anger. In contrast, killing civilians creates loathing which only makes public opinion more obdurate, and does not contribute toward the attainment of the change that might result in political independence.

A description offered by Amitai Etzioni demonstrates the difference between anti-civilian tactics that corresponds with this rule and civilian tactics that contradicts it.

In 1946 I was a member of the Palmah—a Jewish underground commando unit – which sought to pressure the British to open the gates of Palestine to Jews fleeing Europe after the destruction wrought by Nazism.We sought to pressure the British to allow those Jews to settle in the place that would later become the sovereign State of Israel. I say “pressure” because contrary to our rival—Irgun—we fought a war of public relations. We did that by warning before bombing the buildings that British soldiers inhabited. Our goal was to make headlines, without counting bodies.46

Even if it is more difficult and risky, the Palmah tactics seems perfectlypossible. If fighters are capable of exploding a building they are usually able toprovide advance warning that they intend to blow up a building.

In sum, in asymmetric wars that are here under discussion, the distinction between civilians and soldiers collapses. The distinction between legitimate military targets and illegitimate civilian targets collapses as well. Still, a careful analysis of the accepted war convention and the morally reasonable expectations maintained by it entails that there are means (that those who believe themselves to be) freedom fighters should not employ in their struggle against (what they believe to be) a colonialstate. Intentionally targeting civilians is one of these means. Indiscriminating killing is wrong not because it does not discriminate between soldiers and civilians; it is wrong because it does not discriminate between the civil society, which is responsible for the evil against which freedom fighters struggles, and its memberswho ought to be treated as if they bear no such responsibility. Indiscriminating

46 Amitai Etzioni, A Response to Jane Mayer’s “The Predator War” at 67, available at http://www.ndu.edu/press/jfq_pages/editions/i57/etzioni.pdf (last visited Apr. 2012).

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tactics fails to exempt members of a society from personal responsibility for the evil their society causes.

Let me mention one objection to this analysis, which merits close attention. It might be thought that it is yet another attempt to relate noncombatant immunity to the rule of military necessity, which prohibits causing unnecessary harm. On the objector’s reading, I merely point out that it is possible to achieve just victory in asymmetric wars without targeting individuals. Hence, fighters are required to doso.

This is true, but in a very limited sense. Note, first, that contractarianismdoes not deny that killing civilians might be necessary for victory in symmetrical total wars, where civilians are legitimate targets, and in symmetrical wars in which only one side respects the immunity of civilians. Moreover, the general conjecture regarding symmetrical wars that underlies contractarianism is unrelated to necessity; it asserts, rather, that in the great majority of cases, the chances of victory in total wars are roughly equal to the chances of victory in rule governed wars. Second, traditional jus in bello prohibits targeting civil society and civilian infrastructures, while, the contractarian analysis that has been advanced in this essay entails that “justice in asymmetric wars” allows the weak party to target civil society. Finally, in rare concrete circumstances, targeting civilians might turn out to be necessary for achieving just aims, in both symmetric and asymmetric wars. Still, contracts into which parties enter bind them if ex-ante they are mutually beneficial and fair. Thesecontracts do not lose their moral standing if it turns out (ex-post) that violating their terms is necessary for attaining a just cause. Thus, even in cases in which targeting civilians is necessary for achieving just victory, violating the rules which confer on them a right against intentional attack, is a violation of their right to life.

Is there a reciprocal release for the stronger party to target civil society, once the taboo against attacking civilian objects has been broken? In other words, suppose the “slaves” use irregular methods to attempt coercion, by attacking civil society; ought the “masters” to refrain from reciprocal action against civil society? This is a complicated question. Note, however, that there is no principled reason not to require from the stronger side to be held to one standard while requiring from the weak side to follow another. There is no principled reason to require uniform and generic rules of asymmetric wars. To the contrary: a rule allowing the strong side to target enemy civil society allows it to ruin the civic life in this society. This goes against the morality that underlies the laws of war, which commands protecting the right of self-determination by immunizing civil society from direct attack. Indeed, the historical record on insurgency and counterinsurgency indicates that, unfortunately, in the absence of censure at home, extreme brutality by the counterinsurgent occurs. There is, therefore, a true moral asymmetry here: the permission of the weak side to target civil society enables it to produce terror in

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order to impact public opinion, but it does not engender the very existence of civic life in the strong society. Hence, a differential rule that requires from a strong state to target only militants and warriors, while allowing freedom fighters to target civilsociety, seem quite reasonable.

Admittedly, the fact that my version of justice in asymmetric wars is constituted by differential rules is a real limitation of it. One might believe that to secure high level of compliance, rulemakers would opt for rules that embody formal equality. Indeed, most of international law is articulated in uniform and generic terms making no distinction in obligation and permission for differentially situated parties. This should come as no surprise—applying rules that command formal equality is easier. Such rules will not distinguish between strong states and weak non-state actors: if the weak party is allowed to target civil society, so does the stronger party. Yet, this limitation does not undermine the moral standing of the differential code proposed here.

The close relations between justice in asymmetric war—as it is developed in this essay—and the 1977 Additional Protocol is a source of a different worry, which Amichai Cohen raised in his comments on this essay. The Protocol—Cohen observes—does not actually work: Many states—states that are involved in asymmetric warfare in particular—reject the protocols explicitly or implicitly. In response to Cohen’s observation, let me point to a crucial difference between the code I develop here and the code that emerges from the Additional Protocol. Justice in asymmetric wars accommodates the independence principle; it asserts that individuals in asymmetric wars have rights and duties independently of whether or not their war is just. In contrast, the Additional Protocol protects irregulars who fight for a just cause, against colonialism, racism and apartheid; thus, states inasymmetric conflicts, which respect the rights conferred on non-state actors by theProtocol—declares themselves as colonial powers. States are unlikely to do that. It should come as no surprise that states in asymmetric conflicts tend to deny thatmilitants are subject of the Additional Protocol based rights.

The analysis I have advanced might suggest an important scope restriction. Some non-state actors today—the Al Qaida organizations are a prime example—do not fight against colonization or occupation. We should, therefore, ask: Doesjustice in asymmetric war apply to members in such organizations? Justice in asymmetric wars commands the parties to an asymmetric war of independence to treat all individuals involved as if they justifiably believe that they fight for a justcause. In particular, the strong party should treat the individuals against whom it fights as if they are freedom fighters, despite the fact that, probably, it woulddeny that the weak party is entitled to use force. At least at first glance, Al Qaidamilitants cannot be treated in this way: they do not justifiably believe that theyfight for independence, because they would explicitly deny that they fight for such

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a cause. Put differently, justice in asymmetric wars appeals to the morality of the international community, as it is expressed by current international law, in order to argue for the possibility of just wars of independence. But, there seems to be no goal that can be sincerely attributed to Al Qaida militants, which can justify their use of force, even in principle. It might be thought, therefore, that like pirates, Al Qaida militants form a different category and that justice in asymmetric war does not apply to them. Exploring whether or not this is the case goes beyond the scope of this paper, and I won’t pursue this line of argument any further.

VI. CONCLUSION

The thesis of this paper is that within asymmetric wars, traditional noncombatant immunity has no contractarian justification. These wars require, therefore, adifferent treatment. It further argues that an agreement which allows those who take themselves to be freedom fighters to threaten civic life, yet prohibits deliberatelytargeting individuals, is fair and mutually beneficial. Thus, the branch of the warconvention I called “justice in asymmetric war” instructs them to treat civilians as if they bear no personal responsibility for the evil that their society causes. This is a fair rule: the odds of the weak party to attain (what it takes as) its just cause are not diminished by the fact that its violent actions are congruent with this rule.

Justice In Asymmetric Wars: A Contractarian Analysis

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