Showing key publications in this field, as selected by the author
Change to sort them by year | name | type OR
Show All 6 | Recent publications

This paper suggests that the best available normative framework for guiding conduct in war rests on categories that do not echo the terms of an individual rights-based morality, but acknowledge the impossibility of rendering warfare fully morally justified. Avoiding the undue moralization of conduct in war is an imperative for a normative framework that strives to actually give behavioural guidance to combatants, most of whom will inevitably be ignorant of the moral status of the individuals they encounter on the battlefield and will often be uncertain or mistaken about the justice of their own cause. We identify the requirement of military necessity, applied on the basis of what we refer to as the “St. Petersburg assumption”, as the main principle according to which a combatant should act, regardless of which side or in which battlefield encounter she finds herself. This pragmatic normative framework enjoys moral traction for three reasons: first, in the circumstances of war it protects human life to a certain extent; second, it makes no false claims about the moral justification of individual conduct in combat operations; and, third, it fulfils morally important functions of law. However, the criterion of military necessity interpreted on the basis of the St. Petersburg assumption does not directly replicate fundamental moral prescriptions about the preservation of individual rights.

Jeff McMahan’s challenge to the longstanding orthodoxy about the right way to conduct war has fallen on fertile grounds because it is an attempt to apply to the use of force between states a moral standard whose pertinence to international relations is decreasingly contestable and which regulation by international law (IL) is, therefore, under pressure to afford: the preservation of individual rights. This compelling endeavour is at an impasse given the admission of many ethicists that it is currently impossible for international humanitarian law (IHL) to regulate killing in war with a view to individuals’ liability. IHL’s failure to consistently protect individual rights, specifically its shortfall compared to human rights law, has led to challenges also by international lawyers. This paper identifies the features of war that ground the inability of IL to regulate it to a level of moral acceptability and characterises such situations as presenting an epistemically cloaked forced choice regarding the preservation of individual rights. Commitment to the above moral standard then means that IL should not prejudge the outcome of such quintessential wars and must, somewhat paradoxically, diverge from morality. In showing that many confrontations between states inevitably take the form of such epistemically cloaked forced choices, the paper contests the argument by revisionist just war theories that the failure of IL to track a deep morality of war is merely a function of contingent institutional desiderata. Symmetrical IHL with its current moral limitations has a continuing role to play in international relations.