a. Default-to-policing approaches
This final section outlines four basic types of responses typically proposed to solve the problem of non-standard cases. As I described it in Chapter 1, this problem says that when the police or military use lethal force outside of a law enforcement or warfighting context respectively, then the moral justifications for their morally exceptional use of lethal force become problematic. The first type of response is to make policing the default option. In other words, where there is doubt about to which paradigm an instance of lethal force belongs, then we should always conclude that it fits within the policing paradigm. One could argue, for example, that when the conditions
for war are not met, and the state is faced with an ambiguous conflict scenario, then we should assume that the context is best described as law enforcement.
This default-to-policing approach is a commonly accepted view with international lawyers, for example. Robert McLaughlin, in his analysis of use of force paradigms applicable under United Nations Security Council Chapter VII mandates, argues that the default legal approach should be the “law enforcement” paradigm, with its focus on human rights, criminal law and limiting the use of lethal force to self-defence
situations.495 In a similar fashion, Nils Melzer concludes his legal analysis of targeted killing with the view that, “all State-sponsored targeted killings, except those directed against legitimate military objectives during the conduct of hostilities, are governed by the paradigm of law enforcement, regardless of contextual or territorial
considerations.”496 His concern is that the practice of targeted killing is a problematic
move away from established normative standards for the protection of human life towards an increasingly arbitrary legal order.497 David Rodin goes further than this and makes the more radical claim that the state does not have a right of self-defence and that the moral justification for the institutional use of lethal force should be derived from the law enforcement paradigm. He subsequently suggests that this approach then requires the establishment of a minimal universal state to be effective.498
A key assumption of a default-to-policing approach is that justifications for state- sanctioned intentional killing must belong to one of the two standard paradigms. According to Claire Finkelstein, either it is justified killing of co-belligerents, as set out by the traditions and laws of war, or it is a form of law-enforcement, whose norms are established by the parameters of the general principles of morality relating to the
495 Rob McLaughlin, "The Legal Regime Applicable to Use of Lethal Force When Operating under a
United Nations Security Council Chapter Vii Mandate Authorising ‘All Necessary Means’," Journal of Conflict and Security Law 12, no. 3 (2007): 417.
justifications and excuses of everyday morality.499 An attraction of a default-to-policing approach is that it is comparatively straightforward. The logic of “if-not-warfare-then- policing” seemingly removes, with little effort, any ambiguity for the state-sanctioned agents to take action in situations of conflict. If it cannot be shown to be one, then it must be the other. So it gives decision-makers a clear heuristic for dealing with
complex issues. It also gives the impression of being the safest option for dealing with the problem of non-standard cases. That is, the safest option in terms of choosing an approach that maximises cautiousness and, as Alexander Guerrero suggests,
demonstrates reluctance to use lethal force in conditions of uncertainty.500 After all, policing demands more restraint when considering the use of lethal force than does the military in war.
It does not follow, however, that a situation failing to meet the conditions of warfare always therefore meets the necessary conditions of law enforcement. If it is true that the moral justification for a state-sanctioned agent’s use of lethal force is in some way derived from the existence of specific conditions existing, then the absence of these conditions in one context is no proof of their presence in the other. In other words, the conditions necessary for morally justifying lethal force must exist in and of themselves rather than assuming they must exist when another set of conditions, either in whole or in part, are absent. Furthermore, a default-to-policing approach does not attempt to explain how state institutions relate to both conditions of conflict and moral justifications. As I explain in Chapter 5, the necessary conditions of the law
enforcement context play an important role in justifying the moral exceptions that apply
497 Ibid., 435. 498 Rodin, 163.
499 Claire Finkelstein, "Targeted Killing as Preemptive Action," in Targeted Killings: Law and Morality in an Asymmetrical World, ed. C. Finkelstein, J.D. Ohlin, and A. Altman (Oxford: Oxford University Press, 2012), 161.
500 Alexander A Guerrero, "Don’t Know, Don’t Kill: Moral Ignorance, Culpability, and Caution," Philosophical studies 136, no. 1 (2007).
to the police use of lethal force. The complete or partial absence of these necessary conditions means that the police are more likely to unjustly use lethal force.
b. Extending the boundaries of war
A second type of approach for solving the problem of non-standard cases is to extend the boundaries of war. An extending war boundaries approach posits that conflict is a normal element of human social interaction and so the moral
exceptionalism that conventionally only applies in war can, in fact, be applied more broadly. It might be argued that the exceptional moral permissions derived from the just war tradition can be extended and applied outside of the conventional warfighting context.501 But we potentially create a moral problem when we allow the boundaries of war to extend too far. When, as Rosa Brooks describes it, everything becomes war and the military becomes everything.502 We should resist the notion that violent conflict is a
normal element of human social interaction and too easily permit the uniquely
destructive activities that should only happen in war. This is because it contradicts the conventional view of civil society which considers “bellum omnium contra omnes” (or
“war of all against all”) as something that must be restrained. Hobbes calls this problem the “state of nature,” which he describes in the following way:
Hereby it is manifest, that during the time men live without a common Power to keep them all in awe, they are in that condition which is called Warre; and such a warre, as is of every man, against every man. For Warre, consisteth not in Battell onely, or the act of fighting; but in a tract of time, wherein the Will to contend by Battell is sufficiently known.503
501 As I explained above, the just war tradition gives military combatants exceptional moral permissions
for killing enemy combatants in war. The moral exceptionalism of just war thinking is grounded in the essentially political nature of war. As Michael Walzer argues, war is a relation between political entities (and their human instruments) rather than one between persons. Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 36.
502 Brooks. 503 Hobbes, 88.
In this state of nature, says Bellamy, individuals can never be sure of their security and are forced into a war of all against all.504 Tom Sorell describes how in the
social contract theories of Hobbes, Locke and others, the state of nature is the human condition before there was a state order, and the condition that human beings would be returned to if an existing state were to dissolve.505 He describes the state of nature as a
state of generalised insecurity in which the concept of morality has no footing.506 In this state, each person has the right of nature, suggests Sorell, taking whatever seems a help to his own self-preservation and prosperity.507 In order to avoid this situation, Bellamy explains that individuals agree to the establishment of states in order to meet their most fundamental needs. That is, the people agree to a social contract wherein they a place a monopoly of power and the right to rule in the hands of a sovereign. In return, the sovereign promises to protect the political community from the twin dangers of internal anarchy and external aggression.508
Yet recent scholarship has sought to apply the principles of war to an increasingly wide variety of practices, contexts and institutions. John Stone, for example, seeks to demonstrate the ways in which cyber-attacks can be construed as acts of war.509 Randall Dipert also applies the conventional principles of the just war tradition to cyberwar. He concludes that existing international law and principles of just war theory do not apply to cyberwar in a straightforward way.510 Michael Quinlan uses just war thinking to morally evaluate intelligence practice. He argues just as we cannot morally engage in
504 Bellamy, 69. 505 Sorell, 25. 506 Ibid., 26.
507 "Hobbes, Locke and the State of Nature," in Studies on Locke: Sources, Contemporaries, and Legacy
(Springer, 2008), 27.
508 Bellamy, 69.
509 John Stone, "Cyber War Will Take Place!," Journal of Strategic Studies 36, no. 1 (2013). 510 Randall R. Dipert, "The Ethics of Cyberwarfare," Journal of Military Ethics 9, no. 4 (2010): 384.
any war we like and fight it any way we like, so we cannot engage in any intelligence activity and conduct it in any way we like.511
There is even an influential literature that seeks to apply the principles of war to business practice.512 Mark McNeilly, for instance, uses Sun Tzu’s The Art of War to formulate six strategic principles that apply to the world of business.513 In similar
fashion, Andrew Holmes adapts Carl von Clausewitz’s On War to business practice as “part and parcel of man’s social existence.”514 There is nothing wrong with seeking to
develop such interdisciplinary insights. But there is a risk that we can miss the point of the morally exceptional nature of the destructiveness that we apply to military
combatants in warfare. A patently absurd example of this is William C. Bradford’s argument that academic “scholars, and the law schools that employ them, are—at least in theory—targetable so long as attacks are proportional, distinguish non-combatants from combatants, employ non-prohibited weapons and contribute to the defeat of Islamism.”515
My point here is that war needs boundaries because in war we permit substantially more harm than we do in normal life. That is, we treat war as something that allows moral exceptions to destruction and killing. David Luban argues that the military paradigm offers much freer rein than normal life. He suggests that in war, but not in law, it is permissible to use lethal force on enemy troops regardless of their degree of
511 Michael Quinlan, "Just Intelligence: Prolegomena to an Ethical Theory," Intelligence and National Security 22, no. 1 (2007).
512 In these cases, the authors are seeking to apply principles of conflict to competitive activity rather than
develop an understanding of the ethics of war as such.
513 To be fair, McNeilly does make clear that “businesspeople should not follow the philosophy of the
destruction created by total war.” Mark R. McNeilly, Sun Tzu and the Art of Business: Six Strategic Principles for Managers (New York: Oxford University Press, 1996), 5, 8.
514 Andrew Holmes, Carl Von Clausewitz’s on War: A Modern-Day Interpretation of a Strategy Classic
(Oxford, UK: Infinite Ideas Ltd, 2010).
515 Cited in Matt Ford, "The West Point Professor Who Contemplated a Coup," The Atlantic,
personal involvement with the adversary.516 Luban suggests that one can attack an enemy without concern over whether he has done anything wrong. He further suggests that, in war, “collateral damage” (i.e. foreseen but unintended killing of non-
combatants) is morally permissible and the requirements of evidence are much
weaker.517 Stephen Neff identifies, in his history of war and the law of nations, a set of
normative features that make war different to the rest of social life. He suggests that war is a violent conflict between collectives rather than between individuals, which distinguishes it from interpersonal violence.518 And he argues that wartime is distinguishable from peacetime.519
Military combatants should only do the harm that is justifiable because it is necessary to secure victory. But this still permits much more destruction and killing than normal life. The harmful means employed by military combatants in war is unlike, say, a police officer in a well-ordered society. As explained by Geoffrey Corn et al:
For the soldier, the logic is self-evident: the employment of combat power against an enemy—whether an individual soldier firing her rifle, a tank gunner firing a highly-explosive anti-tank round, or an Apache pilot letting loose a salvo of rockets—is intended to completely disable the enemy in the most efficient manner in order to eliminate all risk that the opponent remains capable of continued participation in the fight.520
And it hardly needs to be said that we should be shocked if a private corporation routinely used lethal force against its business competitors. In contrast, military combatants take a completely different approach to killing. Soldiers on the battlefield are actively looking to destroy the enemy’s military capability, which includes killing the opposing forces’ troops as routine business.
516 David Luban, "The War on Terrorism and the End of Human Rights," Philosophy and Public Policy Quarterly 22 (2002): 9.
517 Ibid. 518 Neff, 15. 519 Ibid.
520 Geoffrey S. Corn et al., "Belligerent Targeting and the Invalidity of a Least Harmful Means Rule," International Law Studies 89 (2013): 537.
Extending the boundaries of war ignores the real progression made by
international society in restricting the use of armed force between states. This approach risks changing the laws of war in ways that undermine important benefits of the current international order. Jeremy Waldron, for example, in his discussion of targeting killing, warns that great caution must be brought to any attempt to change the laws of war.521 Changing or revising the laws of war, he argues, means letting go of one strand of proven normativity (in an otherwise normative-free zone) in which a great deal has been invested.522 In short, we should always keep at the front of our minds the underlying principle of restraining violence promoted by the just war tradition.
c. The individualist approach
A third potential avenue for solving the problem of non-standard cases is to argue that there is nothing morally special about the use of lethal force in war (or law
enforcement). War is typically thought of as another exception to our usual moral prohibitions on the use of force. But over the last two decades, the state-sanctioned, collectivist approach in just war theory has been challenged by what Helen Frowe calls “reductive individualism.”523 This individualist account (also commonly referred to as
the revisionist account) of morally justified killing holds that the only available moral justification for using lethal force is killing in self-defence or defence of others. As I stated above (in 4.3), McMahan is a major proponent of this approach. He denies that a military’s use of lethal force is morally exceptional in the way that conventional just war thinking presumes. He denies that the establishment of political relations among a group of people confers on them an exceptional right to harm or kill others and
521 Jeremy Waldron, "Justifying Targeted Killing with a Neutral Principle?," in Targeted Killings: Law and Morality in an Asymmetrical World, ed. C. Finkelstein, J.D. Ohlin, and A. Altman (Oxford: Oxford University Press, 2012), 127-28.
522 Ibid. 523 Frowe, 2.
concludes that the political nature of a group is morally irrelevant to the moral justification of killing.524 Individualists hold that it is a mistake to think of war as
morally distinctive. Instead, individualists, such as Frowe, say that military combatants should be governed by rules that are ultimately reducible to the moral rules of ordinary life.525 That is, the moral rules that govern harming between individuals are the same
moral rules that also govern harming in war. War does not provide an additional set of exceptions to the prohibition against killing for the military’s use of lethal force. Rather, she suggests that the individualist approach tells us that the military in war are morally justified by the same exception as killing in self-defence and defence of others.526 This individualist account of armed conflict concludes that the problem of non-standard cases is irrelevant because there is nothing morally special about war. If neither a policing paradigm nor the military paradigm plays a decisive role in
determining moral rules for the police and military, then non-standard cases are simply
not morally problematic.
But individualism underestimates the role of state-sanctioned institutions for determining moral rules. As I demonstrate in the next two chapters, the institutional roles of “police officer” and “soldier” differ from civilian life in a number of morally significant ways. I also make clear that the reductive individualist overestimates the applicability of the killing in self-defence paradigm. The self-defence paradigm can demand less restraint and risk-taking in decisions to use lethal force than demanded by either the military or policing paradigms. Furthermore, as Uniacke argues, the moral principles of just war thinking are grounded in important assumptions about the nature of political authority and responsibility that do not apply to killing in self-defence.527 The authorities who make decisions on waging war, for example, have a much broader
524 McMahan, "Collectivist Defenses of the Moral Equality of Combatants," 53. 525 Frowe, 2.
range of political considerations. And military combatants fight at the direction of a state’s leaders and act on their behalf.
d. Hybrid approaches
A final approach is to conclude that when it comes to using lethal force, we need a well-reasoned “hybrid” ethical framework that draws on the appropriate moral
principles of both the military and the policing paradigms. This approach holds that we do not move immediately from one paradigmatic context to the other. In reality, we should accept that there is an in-between area. David Luban warns against what he calls a “hybrid war-law model,” however, because of his concern that states will misuse such an approach by picking-and-choosing the rules that suit them. For example, he suggests that “the U.S. has simply chosen the bits of the law model and the bits of the war model that are most convenient for American interests, and ignored the rest.”528 But the misuse