Sebastian Holsclaw successfully takes on Chris Bertram, and clarifies thought in an excellent post on jus in bello:
Obsidian Wings: Asymmetric Warfare : By Sebastian: Discussions about rules of warfare tend to mix and muddle the reasoning behind such rules. A classic example of this is can be found here at Crooked Timber:
Of course the reason people don’t line up to be shot at, wearing proper uniforms, distinguishing themselves from the civilian population, and so on, is that it would be suicidal so to do. And here lies a real difficulty for conventional just war theory. If recourse to war is sometimes just—and just war theory says it is—but it may only be justly fought within the jus in bello restrictions, then it looks as if an important means to pursue justice is open to the strong alone and not to the weak. Faced with a professional army equipped with powerful weaponry, people who want to fight back have no chance unless they melt into the civilian population and adopt unconventional tactics. If those tactics are morally impermissible because of the risks they impose on non-combatants, then it looks as if armed resistance to severe injustice perpetrated by the well-equipped and powerful is also prohibited. And that looks crazy.
The Ethics of War (eds Sorabji and Rodin). Rodin proposes to address the problem by strengthening the jus in bello constraints on the strong. In particular he suggests that they be restrained from attacking “grey area” targets (targets that have potentially military uses by serve important civilian functions, such as TV stations, and power plants), that before an attack is authorised they be required to establish with a far higher degree of certainty than at present that a proposed target is indeed legitimate, and, third, that they be made to take “exceptionally rigourous” steps to ensure that civilians are not exposed to collateral harm and also to ensure that the environment in which those civilian live is not damaged and degraded.
Needless to say this is a problem that is simply ignored by the many blogs that drone on incessantly about jus in bello violations by the weak (and, in the face of those violations, parrot the synthetic moral outrage of the spokespeople for strong states). On the other side, though, it hardly seems to be satisfactory to say that non-conventional forces should be subject to weakened jus in bello restrictions, since the restrictions are there to protect those who have immunity from attack and whose immunity is not removed or diminished by the fact that one side or the other are militarily disadvantaged. So I was interested to read a recent paper by David Rodin, “The Ethics of Asymmetric War” in
The first error is in thinking that the rules of war are interested in the underlying justice claims of the combatants.... [T]he Hague Conventions and Geneva Conventions are very pragmatic.... If two sides are willing to go to war, it should be obvious that there is a serious disagreement between them about the underlying justice claims.... The rules of warfare... are not about getting to the most just resolution. The fact that a more just but weaker force will often lose... is a different... problem [from the one the Hague and Geneva Conventions address].... Since the Hague Conventions, the rules of warfare have tended to have two organizing principles: First that war should be conducted between combatants... second... war methods should be proportional to their aims... "non-combatant immunity" and "proportionality". I will use these terms because they are the proper terms of art, but I want to take special note of the fact that they are specialized terms.... "[P]roportionality"... [i]n the laws of warfare context it should not conjure the idea of a tit-for-tat response... but rather whether or not the means is justly related to the ends.... "[N]on-combatant immunity"... does not mean that non-combatants can never be injured in war. It means that they are not to be targeted in war.
These principles lead to a number of secondary issues.... In order to facilitate non-combatant immunity... the Hague Conventions, Geneva Conventions, and other codifications of the laws of war outline a large number of things that are supposed to separate combatants from non-combatants... identification schemes... organizational schemes (so that there is someone to negotiate an end to hostilities), and spatial rules.... All of these rules are designed to minimize civilian casualties by allowing the combatants to focus on fighting only one another.
Modern asymmetric warfare is about turning the rules of non-combatant immunity and proportionality on their heads... target[ing] civilians and civilian objects... attacks... linked to no military objective... no distinguishing uniform... place their military targets in or next to civilians and civilian objects... gravely endangers civilians on both sides. This strategy serves a number of purposes. It protects their own fighters by making them difficult to target. It allows propaganda victories whenever they kill civilians on the other side. It allows propaganda victories whenever civilians near them are killed. Killing civilians (on both sides of the conflict) is not a side effect of trying to hide from the enemy. It is the most important positive strategy of asymmetric warfare. As a result of these practices, civilians are placed in much more danger than they would otherwise face.
Rodin's proposal (and I believe from his post that Bertram endorses it) would have a number of negative effects... it would dramatically extend the length of wars. Fighting guerrillas is already very tough... would make negotiated settlements or surrenders very unlikely. The wars can (and do) continue across many generations. This isn't good for civilians.... [I]t would reinforce the already existing impulse to mix military and civilian targets. If you give extra-special protection to mixed targets, you are directly incentivizing the co-location of military and civilian targets...
I, too, found Chris Bertram's argument to be bizarrely off-center, particularly the argument that jus in bello "looks crazy":
Faced with a professional army equipped with powerful weaponry, people who want to fight back have no chance unless they melt into the civilian population and adopt unconventional tactics. If those tactics are morally impermissible because of the risks they impose on non-combatants, then it looks as if armed resistance to severe injustice perpetrated by the well-equipped and powerful is also prohibited. And that looks crazy.
Recall that "melting into the civilian population" and "adopting unconventional tactics" help "armed resistance to... the well-equipped and powerful" only if the well-equipped and powerful are themselves followers of jus in bello. If you eliminate jus in bello, then the well-equipped and powerful use the well-tried strategy of solitudinem faciunt et pacem appellant. To eliminate jus in bello is bad for the guerrillas, and is very bad for the people caught in the crossfire they purport to be fighting "for." Can we say that U.S. aid and support to those violating jus in bello in their fight against the Soviet occupation of Afghanistan in the 1980s wound up doing the people of Afghanistan a lick of good? Wouldn't it have been better to cool down the situation, let the Afghan Communist Party build roads and schools and powerplants, and to have waited for Gorbachev?