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Etika in pravo

The Dilemmas of Just War and the Institutional Pacifism

Nenad Miščević
p. 69-88

Abstracts

The paper presents an extended argument for the view that it is a primary duty for all participants in international politics to create and keep in good shape a global peace-preserving system in the form of a very strong cosmopolitan institutional arrangement. The argument combines the Kantian view of institutional basic structure with Augustinian reservations about just war. It starts by listing reasons to believe that war creates perpetual and very dramatic moral conflicts for all participants. Given that such very dramatic moral conflicts are inacceptable, if follows that there is a very strong and urgent duty of everybody to work on prevention of war. Individual pacifism is too weak to guarantee peace, therefore an institutional »basic structure«is needed, in form of a reliable international system. Multi-polar systems do not guarantee peace, quite the contrary. The “democratic peace” is most successful when supported by supra-state systems. Therefore, the only practical way to secure peace is creation and preservation of a global peace-preserving system, i.e. a very strong cosmopolitan institutional arrangement. The role of small countries, like Slovenia, is to defend this line in institutions where they have voice stronger than their actual size, richness and power would procure, like in the UN and Security Council.

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1 Introduction: lamenting the necessity of just war1

  • 1 An early version of the paper has been presented at a conference of Society for Applied Philosophy (...)
  • 2 See also the comments by Scott Fraser, Henry V and the Performance of War in Ros King, Paul J. C. M (...)

1War has been with us for a long time. It has been a prominent topic in the global media at least in the last decade; in the decade before it was omnipresent in the media of this country, Slovenia, and physically present, in all its brutality in its immediate neighborhood. Now we live with insecurity concerning Afghanistan, and possibly Iran. Legal scholars and ethicists have been quick to react to recent events, and to produce an impressive body of literature, denouncing the horrors of war and discussing the way of avoiding them. The mainstream view has it, in my view rightly, that war is forbidden except in very limited kinds of cases. Even threats are seen as unacceptable. Remember Henry V threatening the governor of Harfleur: »The gates of mercy shall be all shut up,/And the flesh'd soldier, rough and hard of heart,/ In liberty of bloody hand shall range / With conscience wide as hell, mowing like grass/ Your fresh-fair virgins and your flowering infants./« (Henry V, 3.3. 87–91).2 No ethicist would condone this. And of course, mere threatening is trifle compared to the actual execution. Henry knows what he is talking about mentioning »Your fathers taken by the silver beards,/And their most reverend heads dash'd to the walls,/  Your naked infants spitted upon pikes.« (3.3. 114–117). The war in former Yugoslavia was full of such events; wars are like this, and to the present-day moral sensibility they rightly appear morally horrific.

  • 3 Ethicists, like for instance Gregory Kavka, warned that intimidation is rather appalling: at least (...)

2In this paper I want to sketch an argument aiming to show that even just warfare is only minimally and barely just, and that therefore the duty to prevent war is the fundamental duty in international politics. I want to do this starting from the following regularity, easy to illustrate. Consider successful threats, as Henry’s was, and as the mutual nuclear deterrence was. On the one hand, they are morally clearly unacceptable, on the other, they did prevent much greater harms. How is one to decide? How does one tell in advance? And, assuming one wants to threaten, and not execute threats, how does one make one’s threats credible?3 Once the actual warfare starts, a sensitive and honest person deciding about how to defend oneself and one’s community will be again caught in the net of dilemmas. The Second World War was a rare example of the clearly just cause on the side of the Allies, namely stopping the Nazis. But at the level of ius ad bellum decision were hard and often morally tainted. Should we bomb German and Japanese towns and kill lots of civilians, some of them completely innocent, some guilty in a indirect manner, or should we sacrifice more of our soldiers, young men who did nothing wrong before entering the army? The conduct of war, even on a just side, presents innumerous dilemmas, that make such warfare perpetually border with injustice and often just cross the thin red line. In practice, there is no clean just warfare. Since the horrors of war are so morally repugnant, and there is practically no way to keep one’s hands clean while fighting, it seems that avoiding them must take precedence over many interests, and even many duties. The duty to avoid war is a basic political duty. In context of international politics it might be the basic duty.

3If this argument is promising, and the conclusion about peace-securing as the fundamental duty holds, it can be combined with further considerations. Very importantly, states have been bad guardians of peace, often better in waging war than in securing peace. Individual conversions to pacifism don’t help on bigger scale. One could argue that peace needs a firm »basic structure«, of a supra-statal, or rather cosmopolitan cast. This point of view is pacifistic, because it condemns war and believes that every warfare, including the one done in self-defense, is deeply problematic. But it differs from other forms of pacifism, because it emphasizes the role of supra-state institutions, and transfers an important part of the burden on them. I shall call this attitude the institutional pacifism or pacifism of institutions. I will sketch this line of argument for institutional pacifism towards the end of the paper. I have to be very brief, and I apologize to the reader; I want him or her to see the whole picture, and this means little space for detailed arguments for particular steps and claims (I particularly regret not being able to discuss David Rodin’s War and self-defense, which I find very congenial).

  • 4 Saint Augustine, The City of God, Peabody, MA, Hendrickson Publisher, 2009 (transl. by Marcus Dods)

4Let me conclude the Introduction by a historical note. The idea that avoiding war is a fundamental duty stems from the Kantian tradition. The main idea to be defended here (unfortunately, in a sketchy manner), that even just war is regrettable, can be found in Saint Augustine, the official creator of the Christian »just war« doctrine. In the book XIX of his The City of God he discusses harsh dilemmas that plague politics and administration in the earthly community, civitas terrena. Then he comes to the plurality of languages and of what we would describe as proto-national communities. They are in constant danger of conflict. The empire »has endeavored to impose on subject nations not only her yoke, but her language, as a bond of peace, so that interpreters, far from being scarce, are numberless. This is true; but how many great wars, how much slaughter and bloodshed, have provided this unity!«, he writes in Chapter 7.4 Wars are worst of all, and empire itself produces them incessantly. A lofty Stoical sage might reply that a wise man should not worry; he should just abide by the just war doctrine. Here is Augustine’s reply:

But, say they, the wise man will wage just wars. As if he would not all the rather lament (dolebit) the necessity of just wars, if he remembers that he is a man; for if they were not just he would not wage them, and would therefore be delivered from all wars. For it is the wrongdoing of the opposing party which compels the wise man to wage just wars; and this wrong-doing, even though it gave rise to no war, would still be matter of grief (dolenda) to man because it is man’s wrong-doing. Let every one, then, who thinks with pain on all these great evils, so horrible, so ruthless, acknowledge that this is misery. And if any one either endures or thinks of them without mental pain, this is a more miserable plight still, for he thinks himself happy because he has lost human feeling. (XIX, 7).

  • 5 Augustine wrote De Civitate Dei after the sack of Rome by Visigoths in 410, and he naturally talks (...)

5At the beginning of De Civitate Dei, Augustine stresses that the worst horrors of wars were in accordance with military custom: »That It is Quite Contrary to the Usage of War, that the Victors Should Spare the Vanquished for the Sake of Their Gods«, as the title of Chapter 2, Book One has it. Later, in Chapter 5, he quotes Cæsar’s statement regarding the universal custom of an enemy when sacking a city: »Even Cæsar himself gives us positive testimony regarding this custom; for, in his deliverance in the senate about the conspirators«, he says (as Sallust, a historian of distinguished veracity, writes) »that virgins and boys are violated, children torn from the embrace of their parents, matrons subjected to whatever should be the pleasure of the conquerors, temples and houses plundered, slaughter and burning rife; in fine, all things filled with arms, corpses, blood, and wailing.«5

  • 6 See on such non-moral feeling bad, for instance Tomas E. Hill, Moral Dilemmas, Gaps and Residues: A (...)

6We can combine the two groups of his statements to offer a coherent picture of the evils of war: first, the habitual customs of war condone and even recommend worse horrors. Second, if, in spite of this, someone managed to wage a just warfare, this would still be a matter for regret. The idea that even the most just wars are regrettable is the main point in our present context. There are two immediate questions about the connection with our argument from dilemmas: first, did Augustine think of dilemmas accompanying just war? Second, when he talks about regret, the »grief« or »mental pain« (in Latin just dolor in both cases), does he mean the moral regret, or just »bad feeling« that is not strictly moral.6 To start with the last one, it seems that pointing to mere feeling bad about one’s actions is not an answer to stoics; a stoic ethicist would dismiss it as a mere accidental weak passion, of no significance. If Augustine really wanted to answer the stoic, which I think he did, he had to rely on moral regret. The same holds for a related more radical possible attempt to dissociate Augustine completely from the criticism of just war; our opponent might claim that the just warrior only has to grieve for the deeds of others, namely of the unjust ones, for the generally lamentable nature of war, not for his own deeds. But this is very weak against the Stoic: if the only grief of the just warrior is the grief of a spectator (like the bad feeling one has when watching a war documentary about a war distant in time and/or space), then again it is just a natural weakness with no moral significance.

7As for the dilemmas, they are so much on the surface of this view of earthly, this-worldly politics, or immediately below it that it is hard to imagine he would not think of them here. Here is John Parish, author of the book on moral dilemmas linked with »dirty hands« in the history of political philosophy:

  • 7 John M. Parrish, Paradoxes of Political Ethics, New York, Cambridge University Press, 2007, 95.

Augustine is acutely aware that human life, especially in politics, is beset by unavoidable choices that appear, at least on the surface, to constitute genuine moral dilemmas. And the cause of these recurrent dilemmas, according to Augustine, is most frequently our blurry perceptions of human motivation and the consequent difficulties that arise in trying to render our inevitable judgments upon them.7

8And this is why, he says, Augustine uses terms like »lamentable«, as he does in our passage. So, in what follows, I shall take Augustine as my protector saint.

9Let me briefly announce the steps that I will sketch in the paper. My Institutional Pacifist Argument has constructive and critical steps. First, on the constructive side we have two claims, and a conclusion.

10War creates perpetual and very dramatic moral conflicts for all participants. Such very dramatic moral conflicts are inacceptable. Therefore, there is a very strong and urgent duty of everybody to work on prevention of war. The critical part picks up one option out of a longer disjunction: Firstly, Individual pacifism is too weak to guarantee peace. Therefore, a basic structure is needed, in form of an international system. Secondly, multi-polar systems do not guarantee peace, quite the contrary. Finally, the »democratic peace« alternative is most successful when supported by supra-state systems. Therefore, the only practical way to secure peace is creation and preservation of a global peace-preserving system, i.e. a very strong cosmopolitan institutional arrangement. Therefore, it is a primary duty in international politics to create and keep functioning a global peace-preserving system in the form of a very strong cosmopolitan institutional arrangement.

11Here is then the preview. The next section is dedicated to the defense of the first premise of the positive part of the argument, namely the Augustinian suggestion that even just warfare is regrettable, and the rationale for it, namely the ubiquity of grave moral conflicts. The defense is lamentably short, and I apologize to the reader again. Section Three develops, in a very sketchy form, its intended cosmopolitan consequences, by pointing to the deficiency of the alternatives, namely individual pacifism, multi-polar systems of international relations, and finally the statist variant of »democratic peace«.

2 Moral conflicts: quandaries and dilemmas

2.1 Examples

12Here is a classical and often recurring problem for commanders and rank-and-file soldiers, especially on the good side, call them G-warriors, in war situation: a small group, say three or four of G-warriors have taken by surprise a bigger number of prisoners, say a dozen of enemy soldiers. Unfortunately, the G-group just cannot guard, feed and keep in good order the enemy prisoners; it is small, it is in the enemy territory, and I reserves of food and water are minimal. It is them or us. If prisoners are kept, the mission of the group is threatened, the lives of G-warriors are at heavy risk, and keeping them alive means sacrificing good guys for the benefit of the bad ones. On the other hand, just liquidating dozen unarmed persons seems pretty much criminal. A soldier has a right to think of ones own security, a commanding officer has a duty to think of the security of his or her subordinates; how should one decide? If you find this too easy a problem, just vary the proportion: two G-warriors vs. 20, or 200 or 2000 enemy prisoners.

  • 8 See Mason 1996 (n. 6).
  • 9 For the idea of remainder, that is left no matter how the agent acts, here is an insightful comment (...)
  • 10 Philippa Foot, Moral Realism and Moral Dilemma, Journal of Philosophy 80 (1983), 392.

13Let me use the term »moral conflict« as the neutral term for a situation in which the agent is facing conflicting moral demands, without a clear supremacy of one, and a clear sign of the nullity of its opposite. Sometimes, even quite often, »dilemma« is used in this sense and I have used it so informally in the Introduction. However, the professional use tends nowadays to be reserved for objectively irresolvable conflicts, sometimes characterized as »genuine dilemmas«,8 and I shall henceforward use it this way.9 The conflicts that are in principle resolvable, but with a lot of difficulty, and whose resolution normally surpasses the means (information, acumen, time, etc.) that a good soldier has at his or her disposal, I shall call quandaries (some philosophers keep the term »dilemma« for solvable but difficult conflict, e.g. Philippa Foot10). The rest are philosophically uninteresting, but humanly more fortunate manageable conflicts. To reiterate, our topics here are moral conflicts, and they are divided into

dilemmas – objectively irresolvable
quandaries – in principle resolvable, but in practice irresolvable for the agent in question
manageable conflicts – resolvable on time in situ, by the agent in question.

  • 11 John M. Parrish, Paradoxes of Political Ethics, New York, Cambridge University Press, 2007.

14To return briefly to Augustine; Parish11 writes about the omnipresence of dilemmas that according to him plague human history and notes that in his view »the reason for this tragic state of affairs is at root an epistemological problem«, namely the opacity of people’s intentions that renders agents uncertain and weary of each other. On this reading, most of Augustine’s worries would relate to what we call quandaries, since according to him our agent could decide morally if only she had available information; there is an objectively correct solution, only it is not cognitively available to her.

  • 12 David Rodin, War and self-defense, Oxford, Oxford University Press, 2003.

15Here are then examples of some types of moral conflict, many of them famous and amply discussed in the recent literature on the ethics of warfare. We start with the ius ad bellum and the issue of slippery slope. How much enemy activity is sufficient for »aggression« in the technical sense that would justify entering war? (And what kind of threat, if any, justifies striking first?) The issue has been nicely illustrated by David Rodin (in his excellent book12) with the help of example of the beginning of First vs. Second World War. Should the Allies have reacted earlier to the Nazi moves? It would seem to many, quite plausibly, that hindsight plays a significant role in answering the question after the event, plus the knowledge of Hitler’s extermination plans, which was not readily available at the time of decision making (he stated some of them early enough in his Mein Kampf, but a reasonable pacifist might have argued that Hitler is just showing off for domestic purposes, and that his parading with racist threats does not justify armed conflict). Of course, when all goes well, the hindsight tells the agents they were justified ab initio, when not, it reaches the opposite verdict. This does not help them much in the epistemic situation in which Neville Chamberlain and Churchill were in the late thirties.

16Now, in a given murky situation the choice certainly does involve moral conflict. It might raise to the level of a quandary: challenging a well-armed, professional and determined opponent (like the Wehrmacht) and beginning a world conflict as opposed to yielding, sacrificing the freedom of a country or two (in the actual example Czechoslovakia and Poland), does not seem an easy choice. And we can imagine all sorts of analogous, but epistemically even worse realistic cases, e.g. those involving an enemy willing to use nuclear weapons. If one believes in genuine dilemmas, as I do, one might see these moral conflicts as indeed being bona fide examples of them.

17Let me now pass to ius in bello, and to killing and/or harming of enemy soldiers in the warfare that is just in its origin (an ius ad bellum-just war). We begin with the moral situation of just warriors. First, the ordinary matters. We started with the example of prisoners as potential threats and with situations where it is almost impossible to take prisoners and keep them along. The next are active enemy soldiers and quasi-soldiers. First, with what moral right does one kill unwilling enemy soldiers? What about tens of thousands of such soldiers? Next are quandaries about quasi-soldiers: how to distinguish them from civilians? The Additional Protocols to Geneva Convention optimistically assume that guerilla is just; but what about Taliban-style (or the pro-Milosevic fighters in Krajina) guerilla? A more popular topic in philosophy are less ordinary issues. F.M. Kamm discusses »terror-killing in a particularly horrible way« in a just warfare (see below for longer discussion); her focus is the mere amount of horror, and I would add the issues of character: what kind of person can do it? A very similar issue is torturing and the famous ticking bomb quandary.

18The third famous group of problems concerns civilians. First, the ordinary situations. Here is a conflict we already mentioned, the draft problem: should I draft 10 000 of my compatriots-civilians or kill 2000 enemy civilians? What about considerations of age, involving children in the enemy civilian population? (Similarly, the use of enemy civilians as shields.) Finally, we have well known »Supreme emergencies«. Here is the draft problem is supreme emergency: should I turn most of my compatriots-civilians into soldiers and put their life at risk, or should I kill a tenth of this number of enemy civilians?

19So much for the conflict that a just warrior is facing. But what about the relatively innocent unjust warrior? Many authors agree that soldiers, especially rank-and-file soldiers on unjust side are often in the position of not knowing that their side is unjust (and coming to know this would require background, intelligence, effort etc. that can’t be realistically expected) especially if the injustice is moderate and not monstrous, like the Nazi case.

20A whole important line in defense of separability of ius in bello from ius ad bellum is grounded in this agreement. So, the conflicts these soldiers face in are to be taken with roughly the same moral seriousness as those of soldiers on the just side.

21Here are two questions and comments to this list of conflicts raised by my colleague and friend Fridi Klampfer. First, the conflicts seem to reserved more or exclusively for high commanders and not for rank and file soldiers; they are the problem of the elite (call this the Elite Problem argument). Second, a doubt about conflicts and dirty hands: it is often hard to act in a moral way, but if one is determined to do so, it is possible to fight by rules of war, and emerge with one’s personality unscathed by horrors of war, and one’s hands clean (The Clean Hands argument).

22Let me try to answer. First of all, it is the rank and file soldier who has to find in oneself »the inhuman courage needed to kill a human being« as a poet, whose name I forgot, once said. Traditionally, one complains about the willfulness of ordinary soldiers who kill and rape on their own; the famous examples involve massive rapes of German civilian women by soviet soldiers, but the complaint goes way in the past; again, Henry V has a fine formulation: »We may as bootless spend our vain command/ Upon the enraged soldiers in their spoil/  As send precepts to the leviathan/To come ashore.« (Henry V, 3.3). Conversely, a soldier has a maneuvering space which allows one to do not to do bad things, and it is here that soldiers might get in moral conflicts as bad as their generals. In the war in Croatia, Croatian soldiers conquering Serbian small towns in Krajina when entering almost any house risked to be killed by remaining pro-Milosevic guerilla fighters. The usual recipe, but not a command, was to first throw a grenade into the cellar before entering, which usually meant killing innocent civilians. Each soldier, at each building faced the question whether to risk one’s own life and just enter, or whether to risk killing innocent women and children and then enter safely.

23Finally, consider the day-to-day decisions of low-rank commanders: for instance, the choice between humanity-cum-loyalty to »their« soldiers and the demands of higher command in the First World war. When further fighting seems absurd to everyone on the ground, and generals are enthusiastic for continuing it, how is the low-rank commander supposed to act?

24Similar conflicts arise about non-acting. UN commanders and soldiers are famous for standing under extremely strict rules of engagement, close to those dictated by a very strict moral JW code. And infamous for often doing nothing because of this, thus getting impaled on one horn of the dilemma between doing brutal things and being inefficient and failing to protect, most famously in Ruanda and in Srebrenica.

25To summarize, serious moral conflicts, involving massive amount of casualties and bad suffering, are abundant and ubiquitous in the just warfare. Rough equality of alternatives makes decision extremely hard. Maybe it is not really incommensurability, and the root of the difficulty might be purely epistemic, as Augustine seems to have thought, so the conflicts would be quandaries in our terminology. But the mere amount of horror involved is enough to shock normal human sensibility. And there are issues of character: what kind of person can do it, and without moral regret? I assume that such massive, horrific and dramatic moral conflicts are inacceptable. So we have prima facie the material for the positive part of our Institutional Pacifist Argument:

1. War creates perpetual and very dramatic conflicts, quandaries and perhaps even genuine unsolvable dilemmas for all participants.
2. Dramatic conflicts are unacceptable.
3. Therefore, there is a very strong and urgent duty of everybody to work on prevention of war.

2.2 Discussion

  • 13 Michael Ignatieff, The Lesser Evil, Political Ethics in the Time of Terror, Princeton, Princeton Un (...)
  • 14 See Thomas E. Hill, A Kantian Perspective on Political Violence, The Journal of Ethics (1997) I.

26Of course, this is only the beginning. There is a wealth of ethical theories dealing with moral conflict(s) and some literature about martial ones in particular. The general line is epitomized in the title of Michael Ignatieff’s book on terrorism The Lesser Evil, Political Ethics in the Time of Terror:13 since one of the two evils (the evil of action itself or of consequence, or both) will normally be a lesser one, it is permissible to do the action that will avoid the greater evil by producing the lesser one. Among anti-dilemmatists distinguish utilitarians from deontologists. Virtue-ethicists, like your author, need not be against dilemmas, and if they are, their tactics would probably be similar to those of the two other camps, except for stressing the particular nature of the problematic situation, and the corresponding moral insight – »perception«. Traditional utilitarianism would look at the ratio of relevant good or damage reasonably expected at each horn of the apparent dilemma, and suggest the choice of the dominant alternative; the chooser is in the clear, no matter how horrific the alternative looks. Traditional Kantian deontologism seems to exaggerate in the opposite direction, by absolutely prohibiting certain acts, even if they prevent much worse evils. (In fact, writing about violence in revolution, Kant himself comes very close to the saddened Augustinian.)14

27Virtue ethics is the least committed option; some versions would claim that the choice varies from case to case, and it is the matter of moral sensibility and »perception« of the virtuous warrior to recognize the right one.

  • 15 Here is her proposal ((DDE) stands for Doctrine of Double Effect):
    Rawls and Quinn are examples of »
    (...)

28On the contemporary scene one finds more refined proposals. F. M. Kamm, whose work we shall discuss very briefly in this section, helpfully proposes the term »threshold deontologists«, for philosophers, such as Rawls and Quinn who, at least on her reading, accept the idea that in very difficult situations (supreme emergency cases) one may use means which are otherwise next to absolutely prohibited.15 She is also very much into such determining thresholds. Here is a fictional example invented by her, one among many (we shall limit ourselves to this one, with regret):

  • 16 Frances M. Kamm 2004 (n. 15), 656.

Suppose many people will shortly come at you with a deadly force. Perhaps they would rather not be doing this but they are under the control of a surrounding population. (So they are not malicious aggressors.). It is permissible, I believe for you to stop them if you can, even by killing them. However, you have insufficient force to stop them, and you would certainly die having killed only a few. You have two ways to save your life. One is to surrender. The other is to kill one of the combatants at the back of the force (who would not otherwise have died) in a particularly horrible way, so that the surrounding population (ignorant of your true weakness) is terrorized into calling off these forces.16

29I assume that killing someone in a particularly horrible way involves inflicting particularly atrocious pain to the victim. Now, our Augustinian warrior, if thus attacked, might choose to defend herself in the proposed way, but she would see the situation as raising a dilemma. She would think that killing someone in a particularly horrible way is not a thing to do, in particular not killing someone who is not malicious, even if, in an important sense, aggressor. She might have Williams-style reserves and compunctions: I don’t want to be someone who is doing such-and-such thing to a non-malicious human being. Or, she might wonder whether her life, whom she is routinely risking in combats, is worthy of intense suffering of another.

  • 17 Here is Kamm’s generalization of her proposal to the issue of civilian deaths:
    In sum, violability,
    (...)

30A philosopher who is not Augustinian and is not in favor of there being genuine (unsolvable) moral dilemmas—call the later »anti-dilemmatic moral philosopher« for short—will disagree.17 Kamm herself goes on to say:

  • 18 Kamm 2004 (n. 15), 656.

Presumably one can defend oneself by using such a combatant in this terror-killing.
This case shows that killing in self-defense and terror-killing are not mutually exclusive.
18

31There are two things to discuss: first, the example itself, and second, the general ways out for the anti-dilemmatic moral philosophers. The example has all the typical features of a challenging thought experiment in ethics. How are we to imagine the person who is defending herself in this situation, call her Jackie?

32Jackie is someone who reflectively decides that she is allowed to kill the person killing in a particularly horrible way and will do it, and then proceeds to execute the decision. Presumably, she does have compunctions about what she is doing. What would this person be like otherwise? The moment you start filling in the details you see that the story is psychologically at the edge of inconsistency. Is the person happily acquiescing in the thought that »Presumably one can defend oneself by using such a combatant in this terror-killing«? So, she just does the horrible deed, walks away and eats her sandwich. Not very attractive, from the moral point of view. Alternatively, does Jackie perhaps feel very badly about what she has just done? If yes, at least two possibilities are open. The first is that her bad feeling is not moral regret. She feels like someone who has done something very unpleasant that had to be done, is somewhat depressed about the fact, and that is all. We might compare her feeling to the feeling of a sensitive doctor who had to operate a patient without anesthetics, has caused him a great pain, and at the end the patient has died, not by doctor’s fault. I submit that this is not enough for her to be a decent person. What Jackie has done was to inflict all this pain for her own, not the ‘patient’ salvation. She had inflicted terrible pain, and killed a person, to save herself. And there is something morally regrettable about having to do such a thing. The alternative would be, of course, for the person to feel moral regret. Then, she becomes an Augustinian just warrior, morally in pain for the horrors she has to do.

  • 19 Here is a longer quotation from Kamm, illustrating her proposal:
    If enemy soldiers have such reduced
    (...)

33This brings us to the general issues of how to handle morally problematic situations in war. Start with deontologists. In order to avoid a genuine moral dilemma in the Jackie case, the deontologist will have to say something like this: there are two relevant norms, N1 and N2, that prima facie collide with each other. N1 tells Jackie that prima facie (in almost no case) she may not inflict lethal pain to a (non-malicious) person as a means to her own survival. However, there is a norm N2 that tells her that in a particularly threatening situation, when the evil of dying innocently is much, much greater than that of inflicting horrible lethal suffering, N1 is not binding. We obviously have a threshold here, and the threat to Jackie surpasses the threshold, so she my go on with inflicting horrible lethal pain.19

34Now, we can ask one of our previous questions in a wider framework of the discussion. It concerns actions of people in war, capable of killing and knowing how to do it in particular ways; most plausible, this will be trained soldiers (full time, or occasional, when the need for self-defense arises). You want to train just soldiers for the just war, people who will have a lot of compunction, who will carefully distinguish neutrals, enemy civilians, enemy combatants, innocent threats, and be willing to sacrifice their own lives in order not to put in jeopardy the lives of neutrals and of enemy civilians. At the same time, this very person whom you train is assumed to (be able and willing to) kill the right target »in a particularly horrible way« should the need arise. How do you train any human being for this sort of ventures? Think of a paideia instilling into the trainee the soldier’s virtues. How should it proceed?

35It was Dostoyevsky who has most famously raised this kind of issues in a framework which we might take to be implicitly broadly deontologists (in the sense of appealing to duties, rather than to universal benefits, the line embodied in his time and in his country by Chernishevsky). Assuming you honestly believe that killing an innocent person is required from you; still, what kind of person do you have to be in order to do it without moral regret? Even worse, assuming you honestly believe that killing an innocent person for you own advantage is permitted; still, what kind of person do you have to be in order to do it without moral regret? What kind of dispositions you would have to cause yourself to have, as Parfit would put it (see the next paragraph). If Jessie had followed the role-models proposed by Dostoyevsky, she would have gladly sacrificed her life, rather than go the Kamm way. Even if we don’t follow this extreme advice of his, this might help us to become more sensitive to the moral difficulty of the situation for a deontically inspired agent.

  • 20 See Derek Parfit, Reasons and Persons, Oxford, Clarendon Press, 1984, Chapter 1, Section 14.

36Similar questions can be raised for the utilitarianism and other varieties of consequentionalism, if we deploy the famous strategy Parfit used in connection with utilitarianism: don’t look just at the act nor at the rules, but at the kind of character who would routinely perform actions in question.20 The answer is, to my mind, that instilling the routine of killing innocent people, or horribly torturing a randomly chosen enemy soldier in self-defense without any moral regret, just turns the would-be just warrior into a monster. A lot more should be said, but I hope to have made clear that Kamm’s sophisticated offer of a strategy for avoiding dilemmas is not very attractive.

37Until now I have been talking about ius ad bellum (IAB, for short) and ius in bello IIB). But ius post bellum (IPB) inherits problems from the first two iura. The main connection of IPB to the two items is in our view a reflective connection: IPB is essentially concerned with establishing whether a particular episode of warfare was justly initiated (IAB) and carried in a just manner (IIB); further IPB proceeds in the light of findings about the in and ad character of the war just finished. It concerns, first IPB verifying (facts about) IAB and IIB, second, IPB proceeding in the light of facts (and verdict) about IIB and IAB and third, IPB being impossible without verifying facts about ius in and ad and proceeding in the light of them IPB is in various ways »about« IAB and IIB, where the »bellum« in question is the antecedent war, the one preceding the post bellum activities considered. We have called this connection between In-Ad and Post »reflective connection«. An essential part of IPB is second order, and the rest of IPB depends to a large extent on the correctness of the second order verdicts. The findings on IAB and IIB both help in setting the goals of and impose side constraints upon the rest of IPB activities. Most serious quandaries, not to speak of genuine dilemmas from the war itself will reflect in the judgment about it, and in the efforts for restitution, reconciliation and the rest.

38A lot remains to be said. However, for present purposes I will, with some regret, stop here and hope to have persuaded the reader that war indeed creates perpetual and very dramatic moral conflicts for all participants, in particular for those on the good side. To any morally normal person such very dramatic moral conflicts are inacceptable. Therefore, there is a very strong and urgent duty of everybody to work on prevention of war. How should a pacifist do it?

3 Towards a basic structure: a sketch

39Before proceeding any further, let me briefly address two questions. The first concerns a possible reaction to any argument from the horrors of war; our opponent might claim that post-war justice, dispensed by international tribunals, is in principle the adequate answer to the horrors. In a well-ordered world of states the outlaw nations that start wars would pay for it in a procedurally correct way, and the mischief done even by the good side would be sanctioned as well; so what further basic structure is needed? The answer is simple. It is not only that international criminal justice has been scandalously inefficient for decades; after all, one could argue that it is a fledgling branch of justice and will need time. Much more importantly, there is a structural constraint: a system of international justice that would be capable of punishing very powerful war criminals which are the most interesting ones (that would have been able, for instance, to punish the US leaders for things done in Vietnam, or those of Russia for war crimes in Chechnya) would by itself require a very strong institutional supra-statal framework. The objection thus turns against its proponent.

40The second, and more interesting, is the worry that Friderik Klampfer has tentatively raised against my argument from moral conflicts-dilemmas: it is unnecessary to argue for the need of securing peace from dilemmas since the usual just war theory recommends eliminating war anyway: it outlaws aggressive war, and nobody wants to be put in situation to defend oneself, so, once aggressive war is out, the rational interest by itself dictates prevention, and consequently, global peace-preserving system. (We may call it The Redundancy Objection).

41It does not present a grave danger. First, and the least seriously, why not have additional arguments for a good thing: the more the merrier. Second, and more seriously, the Redundancy Objection might rest upon a too optimistic view of standard just war theories.

  • 21 Michael Walzer, Just and Unjust Wars, New York, Basic Books, 1977.
  • 22 Jeff McMAHAN, Killing in War, Oxford, Clarendon Press, 2009.

42Some authors who endorse the just war view as a component in a general account of international justice, most famously Rawls, are concerned about prospects for a global peace-preserving system, but, typical ones don’t show this kind of concern. Two very prominent ones, Michael Walzer21 and Jeff McMahan22 are nation-state theorists, who incorporate no view of a global peace-preserving system into their theory. Finally, the notion of a perfectly just warfare might actually act against the impulse to create a global peace-preserving system. If I am always strong enough, and can defend myself in a perfectly just way, why should I worry about a global peace-preserving system, so why should I accept all the limitations and trouble that building and preserving such a system might impose upon me? Take as illustration a theory of international justice geared to a slightly liberal-nationalist agenda that takes building internally socially just states as basic, and is silent or skeptical about international order, along the lines of D. Miller, Y. Tamir, T. Meissels and perhaps T. Nagel (see References). Call it just nations theory. A proponent of a just nations theory can appeal to the notion of perfectly just warfare, in order to argue that a strong and just nation that can successfully and justly defend itself, has no need for a global peace-preserving system; adding a modicum of nationalism, the proponent can then positively argue against a global peace-preserving system. The Institutional Pacifist theory is not redundant in the face of such a line of argument.

  • 23 For a general discussion of the idea of basic structure see Liam MURPHY, Insitutions and Demands of (...)

43Let me first point to the well-known fact that individual pacifism is too weak to guarantee peace. This point has been continuously put forward against traditional pacifism. (For example, at the very end of nineteenth century Vladimir Solovyev was in his Three dialogues convincingly arguing against Tolstoy listing then recent war crimes of Ottoman army against civilians in Eastern Balkans, and pointing to the impossibility of stopping such an army by pacific means.) Like in other areas, a basic structure is needed, in form of an international system.23 Without such a common peace-guaranteeing structure one lives in permanent Hobbesian insecurity, in the international Wild West. In this situation the obligation of every country is to arm oneself and prepare for warfare, otherwise it will leave its citizens without defense. Every weapon of its neighbors, it rightfully sees as a potential threat, which is to be responded to with the increase of one’s own readiness. You need a strong and ready army, which means a political force formed and trained for warfare, you need patriotism and cult of military leaders and heroes. And even if it merely seems to you that somebody is threatening, you had better deliver the first blow. Thus the borderline between aggressive reaction to what you see as a threat and the pure self-defense very soon becomes blurred. And the most peace-loving politician has to pursue potentially warlike politics unless she wants to be a traitor. The doves of peace have either to become hawks themselves or fall prey to hawks. So, a basic structure is needed. But what kind of basic structure?

44Multi-polar systems do not guarantee peace, quite the contrary. We know that multi-polarity can escalate into cold war, and threaten genuine war. Much worse, the plausible multi-polar division now is often civilizational (with religious belonging as an important component). So, multi-polar competition comes quite close to the »conflict of civilizations«, one of the worse possibilities in international relations. What is left?

  • 24 For a recent debate see Paul K. Huth, Todd L. Allee, The democratic peace and territorial conict i (...)

45Consider the next alternative, famously embraced by John Rawls, in his Law of peoples, the so-called democratic peace hypothesis. Liberal-democratic states don’t go to war with each other, is the slogan. Western Europe is today a school example of this idea of democratic peace. Today it is hard to imagine that England and Spain go into war over the Atlantic ocean, that Italy and Austria became bitter enemies over Tirol, and so on. The thesis was announced by Kant at the end of the 18th century, thirty-odd years ago it was developed by Michael Doyle (see References), and it has a lot if followers today, Rawls probably being the most famous.24 Of course, he is not naïve about it; in the Law of peoples he immediately pointed out that the behavior of the United States of America was very often a problematic exception, and he mentioned the overthrow of Allende’s democratic government in Chile, the operations against Mosaddegh in Iran and others. Secret operations them were undertaken by state government led by monopolistic and oligarchic interests, without the public's knowledge or criticism, he points out. And there are other exceptions, for instance wars of Western democracies in the nineteenth century. But he also found an excuse: not one of those democracies was actually really democratic. After the states get close to ideal, the warfare between them will end. His ideal sounds social-democratic for our views: fair equality of possibilities of all, decent division of income and wealth, the role of society as an employer as oppose to neo-liberal free market game, basic medical care for everyone and public financing of elections. The result would be a »reasonably fair constitutional democracy«. And such countries would not go to war with each other. Both Doyle and Rawls use the idea of democratic peace as justification for moderate statism. Since democratic states naturally don't go into war with each other, they don't need any stronger supra-state framework. Peace comes spontaneously, its natural habitat is an open »society of nation-states«, which does not need covering institutional system. Notice that cosmopolitanism has always derived a big part of its appeal from need to limit and ultimately abolish war and warfare. The international institutions are first of all protectors of peace. If states can themselves guarantee permanent peace, cosmopolitanism is unnecessary. No wonder that Doyle and Rawls are skeptical about the cosmopolitan utopia. According to Doyle the international law is powerful enough to establish sharp separation between countries and to guarantee for the peaceful world of mutually separated countries. And the only thing Doyle sees as a system that goes beyond state borders beside the international law is the free international market.

  • 25 Spencer R. Weart, Never at War – Why Democracies Will Not Fight One Another, New Haven, Yale Univer (...)
  • 26 Weart 1998 (n. 24), 296.

46Things start looking differently when we ask a question that Rawls, strangely, didn't ask: why don't liberal democracies go to war with each other? Historical research in very tradition of theory of »democratic peace« offers unexpected answers. Doyle's colleague, Spencer R. Weart had published a decade ago a historical study called Never at war- Why Democracies Will Not Fight One Another,25 analyzing the actual behaviour of old and new democracies from middle-aged Swiss cantons, over Italian early Renaissance city-states, all the way to the American intervention in Guatemala. Weart brings in a new observation and a new idea. The observation is that it is not only the democracies that are non-aggressive to their equals: decent oligarchies also don't like to go to war with each other. But, democracies and oligarchies have often bit each other to blood: Sparta and Athens are the first and classical example. The idea says that democratic states look at their democratic neighbors as sister states. We are not going to attack a community that is like ours, thought the Renaissance Italians. Weart is working on this idea of sister-states (see, for example the last section of Chapter Six) and taking a step further: democratic citizen is used to bargains and compromises, to non-violent bend with his equals. She sees neighborly democratic communities as fellow-beings, like she sees his co-nationals. His analysis can leads us to an interpretation of democratic peace that isn't statist. Democratic peace, if it exists, arises from the partial effacement of borders between internal and external politics. It is almost the opposite of the statist one. Weart himself, is very careful about his conclusion, and first and foremost interested in history, not the future. Still, he concludes: »In their characteristic fashion the democracies have been weaving an ever denser web of contractual relationships with one another, greatly augmenting their combined economic and political strength.«26 Relying on this explanation of democratic solidarity, we could go a step farther and answer Rawls in the following way: the explanation of why the countries with a better system of government will avoid war is their mutual solidarity, and the habit of treating their neighbors in the same way as they treat their own micro-regions, or their own network of sub-government bodies. Won't that kind of solidarity naturally lead to softening of borders and to creating stable and useful connections between countries, which will naturally point to a supra-state arrangements? And won't democratic peace in the long run undermine moral foundations of statism?

  • 27 I develop a proposal of how such a system might be generated in Nenad Miščević, Nation, Border and (...)

47In Europe much of this appears almost trivial: the present »democratic peace« in Europe has been secured by building the supra-statal system of the EU. At the beginnings of European unification, the major unifying motif was »Never again war!« (Before this, the history of Europe had been dramatically demonstrating that in the anarchistic biography of a whole continent made up of relatively independent countries, there are more opportunities for bitter strife and warring than for peace and reconciliation.) The more recent example of the South-eastern European wider region, from Slovenia to Turkey, shows that the Union's membership is a very safe peace-preserving factor: just the bait of future membership already achieves much, and once a state is are in, the war with neighbors is out. (The two-stage acceptance procedure also follows the original pacifist spirit and motivation: in the pre-accession phase, the candidate county is obliged to come to an agreement with its neighbors about all the major unsolved territorial problems, so that in the second phase it can become a member.) The need for defense from neighbors almost disappears; the situation of self-defense becomes a rare except. Any use of force between neighbors is seen as an unforgivable scandal that concerns the entire system. The system thus treats the safety of individual members in the way a good government machinery treats the safety of its individual citizens. The success of EU in maintaining peace shows that the existence of strong supra-statal institutional system is a very secure guarantee of peace. Our tentative conclusion is that the »democratic peace« is most successful, when supported by networks that go way beyond isolated states. It might be successful only when there is such a network, a true supra-state system. The democratic peace, thus interpreted, leads us towards the cosmopolitan alternative. The only practical way to secure peace is the creation and sustaining of a global peace-preserving system, i.e. a very strong cosmopolitan institutional arrangement.27 Will the cosmopolitan basic structure become a monster that threatens us? I was asked this Kantian question many times when I talked about this subject. The short history of EU shows that it does not have to happen. But I have to leave the issue open here.

4 Conclusion: bringing kant and augustine together

48Let us recapitulate. Our argument for institutional pacifism starts with the pretty obvious fact that war creates perpetual and very dramatic moral conflicts for all participants, that was probably noticed by Augustine in the aftermath of the sack of Rome by Alaric’s Visigoths. The unacceptability of such very dramatic moral conflicts, together with the general horror of war, »all these great evils, so horrible, so ruthless«, as Augustine put it, point to the very strong and urgent duty of everybody to work on prevention of war. Unfortunately, individual pacifism is too weak to guarantee peace, so a basic institutional structure is needed, in the form of an international system. Multi-polar systems do not guarantee peace, quite the contrary. The »democratic peace« is most successful, perhaps successful only when supported by supra-state systems. Therefore, as Kant clearly saw in his Perpetual peace, the only practical way to secure peace is creation and preservation of a global peace-preserving system; personally I believe that one should go beyond Kant’s modest proposal and opt for a very strong cosmopolitan institutional arrangement. Therefore, to reiterate, it is a primary duty in international politics to create and keep functioning a global peace-preserving system in the form of a cosmopolitan institutional arrangement.

49Let me conclude with a question that would naturally occur to most readers from a small country, like Slovenia and Croatia, or from some bigger but neither very rich nor powerful country, like the bigger recent members of EU: what can my country do about this duty? Isn’t it reserved for the big and the powerful? Fortunately, the present-day international system does leave some elbow room to the small and not powerful. My home country, Croatia, was a member of the Security Council a few years ago, did preside for half a year, and did nothing (its chief representative is now being accused for corruption and abuse of position). But in principle, a small country can give a contribution to a better international structure, out of proportion with its small size. It does have a voice in international organizations, and could gain some influence; so the negative conclusions from the ought-implies-can principle do not apply. The duty is there, the gauntlet is thrown; the question is who will pick it up, and who will let it lie.

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Bibliography

Saint AUGUSTINE, 2009: The City of God. Peabody, MA: Hendrickson Publishers.

Claudia CARD, 2002: The Atrocity Paradigm: A Theory of Evil. New York: Oxford University Press.

Gerald Allan COHEN, 2001: If You're an Egalitarian, How Come You're So Rich?. Cambridge: Harvard University Press.

Michael W. DOYLE, 1983: Kant, liberal legacies and foreign affairs. Philosophy and

Public Affairs (1983) 12. 205-35 and 323-53.

1997: Ways of War and Peace. New York: Norton.

Philippa FOOT, 1983: Moral Realism and Moral Dilemma. Journal of Philosophy 80 (1983). 379-398.

Thomas E. HILL, 1996: Moral Dilemmas, Gaps and Residues: A Kantian Perspective. Moral Dilemmas and Moral Theory. Ed. Harold E. Mason. New York: Oxford University Press.

─ 1997: A Kantian Perspective on Political Violence. The Journal of Ethics (1997) I. 105-140.

Paul K. HUTH, Todd L. ALLEE, 2003: The democratic peace and territorial conict in the twentieth century. New York: Cambridge University Press.

Michael IGNATIEFF, 2004: The Lesser Evil, Political Ethics in the Time of Terror. Princeton: Princeton University Press.

Frances M. KAMM, 2004: Failures of Just War Theory: Terror, Harm, and Justice. Ethics 114 (2004) 4. 650-692.

Immanuel KANT, 1994: Perpetual Peace. Trans. Ted Humphrey. Indianapolis: Hackett.

Harold E. MASON (ed.), 1996: Moral Dilemmas and Moral Theory. New York: Oxford University Press.

Jeff McMAHAN, 2009: Killing in War. Oxford: Clarendon Press.

Tamar MEISELS, 2009: Territorial Rights. 2nd edition. Dordrecht: Springer.

David MILLER, 2007: National responsibility and global justice. New York: Oxford University Press.

Nenad MIŠČEVIĆ: Nation, Border and Territory. Manuscript in press.

Liam MURPHY, 1999: Insitutions and Demands of Justice. Philosophy and Public Affairs 27 (1999) 4. 251-291.

Derek PARFIT, 1984: Reasons and Persons. Oxford: Clarendon Press.

John M. PARRISH, 2007: Paradoxes of Political Ethics. New York: Cambridge University Press.

John RAWLS, 1999: The Law of Peoples. Cambridge, London: Harvard University Press.

David RODIN, 2003: War and self-defense. Oxford: Oxford University Press

Richard SORABJI and David RODIN (eds.), 2006: The Ethics of War - Shared Problems in Different Traditions. London: Ashgate.

Scott FRASER, 2008: Henry V and the Performance of War. Shakespeare and War. Eds. Ros King and Paul Franssen. Basingstoke: Palgrave Macmillan.

Yael TAMIR, 1993: Liberal Nationalism. Princeton: Princeton University Press.

Michael WALZER, 1977: Just and Unjust Wars. New York: Basic Books.

─ 2004: Arguing About War. New Haven: Yale University Press.

Spencer R. WEART, 1998: Never at War – Why Democracies Will Not Fight One Another. New Haven: Yale University Press.

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Notes

1 An early version of the paper has been presented at a conference of Society for Applied Philosophy in Leeds. I wish to thank Friderik Klampfer for discussions, and Tea Logar for invitation to publish.

2 See also the comments by Scott Fraser, Henry V and the Performance of War in Ros King, Paul J. C. M. Franssen (eds.), Shakespeare and War, Basingstoke, Palgrave Macmillan, 2008.

3 Ethicists, like for instance Gregory Kavka, warned that intimidation is rather appalling: at least two thousand megatons of nuclear weapons were directed on USSR. If you agree that it would be terrible to carry out the intent and kill millions of civilians as a revenge for the Soviet attack, you agree that the intent itself is bad. Catholic ethicists in America were especially prominent critics. Military experts were stalling: it is not necessary to really realise the attack, it is enough to intimidate the enemy, and to do this, no murderous intent is needed. Ethicists, including prominently Kavka himself, famously responded that this was absurdity: suppose someone offers you a large amount of money just so you would form an intent that is a bit uncomfortable for you, for example to drink something which will make you sick all night long, some mild and harmless poison; but you are not required to realise the intent later. Could you produce that intent at all, asked Kavka in his famous ‘tocsin puzzle’. I can't really threaten if I don't have an intent, and the intent here is horrible.

4 Saint Augustine, The City of God, Peabody, MA, Hendrickson Publisher, 2009 (transl. by Marcus Dods).

5 Augustine wrote De Civitate Dei after the sack of Rome by Visigoths in 410, and he naturally talks quite a lot about horrors of war in, discussing those in Greek and Roman history, including the horrors of civil war, the examples from the Old Testament, and the traumatic recent events in Rome; his list of them reads like a litany of war-crimes read by a contemporary prosecution attorney at an international tribunal, say International Criminal Court.

6 See on such non-moral feeling bad, for instance Tomas E. Hill, Moral Dilemmas, Gaps and Residues: A Kantian perspective, in H. E. Mason (ed.), Moral dilemmas and moral theory, New York, Oxford University Press, 1996.

7 John M. Parrish, Paradoxes of Political Ethics, New York, Cambridge University Press, 2007, 95.

8 See Mason 1996 (n. 6).

9 For the idea of remainder, that is left no matter how the agent acts, here is an insightful comment by Claudia Card:
My use of the term »remainder« extends that of Williams in two ways. First, for Williams remainders are negative, produced by wrongdoing. And yet moral transactions also leave positive remainders when not everything good can be reciprocated. We acknowledge positive remainders in unpayable debts of gratitude. Second, for Williams remainders are not our lingering emotional responses but unexpiated wrongs themselves, the things inevitably not made right. I find it natural, however, to think of emotional and attitudinal responses to such moral facts as also remainders. Thus, regret, remorse, and sometimes shame and guilt are moral remainders. Like the insoluble parts of moral conflicts, these responses remain, even after we have done what we can to set matters right. They are rectificatory responses of feeling rather than action. They reveal important values of an agent who has acted wrongly or is identified with a bad action or bad state of affairs, or those of a beneficiary unable to reciprocate benefits. Remainders can survive both rectificatory action and hard choices in complex situations where inevitably some are wronged or receive less than their due and the best one can do is seek the least undesirable outcome.
Aristotle said of shame, in explaining its status as a »quasi-virtue«, that ideally occasions for it will not arise but that if they do, it is better to have shame than to be shameless.
Claudia Card,
The Atrocity Paradigm: A Theory of Evil, New York, Oxford University Press, 2002, 169.

10 Philippa Foot, Moral Realism and Moral Dilemma, Journal of Philosophy 80 (1983), 392.

11 John M. Parrish, Paradoxes of Political Ethics, New York, Cambridge University Press, 2007.

12 David Rodin, War and self-defense, Oxford, Oxford University Press, 2003.

13 Michael Ignatieff, The Lesser Evil, Political Ethics in the Time of Terror, Princeton, Princeton University Press, 2004.

14 See Thomas E. Hill, A Kantian Perspective on Political Violence, The Journal of Ethics (1997) I.

15 Here is her proposal ((DDE) stands for Doctrine of Double Effect):
Rawls and Quinn are examples of »threshold deontologists«: avoiding some great cost beyond a threshold can override the deontological constraints. Rawls, as we have seen, considers a case in which terror bombing is the only option and the just cause is sufficiently important. By contrast, in discussing Quinn, I have suggested that his approach to the DDE would permit overriding the DDE even if there is an alternative way to achieve our goal. So, in his reasoning, the cost that goes beyond the threshold is not necessarily only the defeat of one’s cause. The cost that goes beyond the threshold can be the difference between the cost of several possible courses of action. For example, the difference in cost between course 1 and course 2 might be too great to merit staying with course 1. This could be true even though it would be permissible to use course 1 if course 2 were unavailable. The point is that avoiding the difference in cost between the courses of action could itself be a goal that is sufficient to override the DDE constraint. For example, suppose for the sake of argument that it would be permissible for us to terror bomb some hundreds of noncombatants rather than do what will kill a million different noncombatants as a mere side effect. Suppose it would be permissible for us to do what kills the million as a side effect if this alone would stop the Nazis. Then, it should be permissible for us to terror bomb hundreds to stop the Nazis, at least as the alternative to our doing what kills a million different people as a side effect. Frances M. Kamm, Failures of Just War Theory: Terror, Harm, and Justice,
Ethics 114 (2004) 4, 664.

16 Frances M. Kamm 2004 (n. 15), 656.

17 Here is Kamm’s generalization of her proposal to the issue of civilian deaths:
In sum, violability, from the point of view of A waging war, in increasing order seems to be: Neutrals, A noncombatants, B noncombatants, A combatants, and B combatants. But if there is only a discount ratio between combatant and noncombatant deaths rather than a lexical ordering, then it is wrong to claim that if one has nonterror (or terror) means to use against combatants, one should use them rather than have engagements harming noncombatants. The ordering reminds us that we should distinguish between harming one’s own combatants and an opponent’s combatants (or noncombatants) for the sake of one’s own noncombatants.
Kamm 2004 (n. 15), 680.

18 Kamm 2004 (n. 15), 656.

19 Here is a longer quotation from Kamm, illustrating her proposal:
If enemy soldiers have such reduced moral responsibility for their acts, it may be appropriate for A combatants to take greater risks to reduce the number of B combatants killed and for B combatants to defend themselves against even appropriate threats presented by A. A nonwar analogy is the person who is morally innocent and yet a threat to us. He may be responsible for his actions in being a threat (e.g., a child pulling a trigger) or merely hurled at us. Even in the latter case, if he will kill us, I believe we may kill him to defend ourselves. However, if we could avoid our death and his as well, by suffering a broken leg, or trying a maneuver that increased one’s chance of death only by 0.1%, we may have to shoulder this cost. We would not have to shoulder it with a malicious aggressor.
Would this mean that there is some limit on the number of B combatants A’s side may kill in order to save one A soldier from certain death as B combatants attack? I do not think so. For in a nonwar analogy, it is permissible (I believe) to kill many morally innocent threats to save one’s life from them. But it could mean that A should choose amongst various options for engagement so that each member of a large army takes a slight risk in order to avoid killing a greater number of enemy soldiers. If this is done, then some one of A’s soldiers will die who would not otherwise have died.
Suppose, by contrast, that A’s combatants need take no risks to reduce numbers of B combatants killed. Then it is theoretically possible that from A’s perspective A’s combatants should count for as much relative to B’s combatants as A’s noncombatants do. The latter ratio is very high, but even in this case would one think that it was permissible for A to arrange for an engagement in which it will have to kill any number of B’s combatants, merely in order to stop the death of one A civilian? I doubt it. Notice that it could be true that A’s combatants and noncombatants have the same degree of inviolability relative to B’s combatants, even though A’s noncombatants have greater inviolability than A’s combatants. That is, A combatants can have greater violability relative to A’s noncombatants but share the latter’s status relative to B combatants.

20 See Derek Parfit, Reasons and Persons, Oxford, Clarendon Press, 1984, Chapter 1, Section 14.

21 Michael Walzer, Just and Unjust Wars, New York, Basic Books, 1977.

22 Jeff McMAHAN, Killing in War, Oxford, Clarendon Press, 2009.

23 For a general discussion of the idea of basic structure see Liam MURPHY, Insitutions and Demands of Justice, Philosophy and Public Affairs 27 (1999) 4. For the criticism of its sufficiency see for instance Gerald Allan COHEN, If You're an Egalitarian, How Come You're So Rich?, Cambridge, Harvard University Press, 2001.

24 For a recent debate see Paul K. Huth, Todd L. Allee, The democratic peace and territorial conict in the twentieth century, New York, Cambridge University Press, 2003.

25 Spencer R. Weart, Never at War – Why Democracies Will Not Fight One Another, New Haven, Yale University Press, 1998.

26 Weart 1998 (n. 24), 296.

27 I develop a proposal of how such a system might be generated in Nenad Miščević, Nation, Border and Territory, manuscript in press.

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References

Bibliographical reference

Nenad Miščević, « The Dilemmas of Just War and the Institutional Pacifism », Revus, 13 | 2010, 69-88.

Electronic reference

Nenad Miščević, « The Dilemmas of Just War and the Institutional Pacifism », Revus [Online], 13 | 2010, Online since 10 November 2012, connection on 21 August 2017. URL : http://revus.revues.org/1273 ; DOI : 10.4000/revus.1273

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About the author

Nenad Miščević

Diplomiral je iz filozofije in sociologije na Filozofski fakulteti v Zagrebu ter doktoriral na Filozofski fakulteti v Ljubljani. Zaposlen je bil na univerzi v Splitu, Filozofski fakulteti v Zadru, od leta 1993 je redni profesor na oddelku za filozofijo Pedagoške fakultete in Filozofske fakultete v Mariboru in hkrati gostujoči profesor na Central European University v Budimpešti. Ukvarja se predvsem s filozofijo duha, epistemologijo in politično filozofijo. Je avtor del John Langshaw Austin. Jezik kot dejavnost, Rationality and cognition, Nationalism and beyond. Je tudi avtor učbenika Filozofija za gimnazije. V letih 1996-99 je bil predsednik Evropskega združenja za analitično filozofijo. Je avtor številnih knjig in člankov v srbohrvaščini, slovenščini in angleščini.

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