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From Jus ad Bellum to Jus ad Vim: Recalibrating Our Understanding of the Moral Use of Force

  • Daniel Brunstetter and Megan Braun
Extract

In the preface of the 2006 edition of Just and Unjust Wars, Michael Walzer makes an important distinction between, on the one hand, “measures short of war,” such as imposing no-fly zones, pinpoint air/missile strikes, and CIA operations, and on the other, “actual warfare,” typified by a ground invasion or a large-scale bombing campaign. Even if the former are, technically speaking, acts of war according to international law, he proffers that “it is common sense to recognize that they are very different from war.” While they all involve “the use of force,” Walzer distinguishes between the level of force used: the former, being more limited in scope, lack the “unpredictable and often catastrophic consequences” of a “full-scale attack.” Walzer calls the ethical framework governing these measures jus ad vim (the just use of force), and he applies it to state-sponsored uses of force against both state and nonstate actors outside a state's territory that fall short of the quantum and duration associated with traditional warfare. Compared to acts of war, jus ad vim actions present diminished risk to one's own troops, have a destructive outcome that is more predictable and smaller in scale, severely curtail the risk of civilian casualties, and entail a lower economic and military burden. These factors make jus ad vim actions nominally easier for statesmen to justify compared to conventional warfare, though this does not necessarily mean these actions are morally legitimate or that they do not have potentially nefarious consequences.

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References
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NOTES

1 Walzer, Michael, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 2006 [1977]), pp. xvxvi. In this article, we focus on jus ad vim acts that are military actions. The moral dilemmas posed by other jus ad vim acts that track less closely with common conceptions of international violence, including sanctions, blockades, and cyber attacks, are beyond our scope. In future research, it would be important to investigate the extent to which non-violent actions, especially sanctions, adhere to the proportionality principle jus ad vim seeks to preserve.

2 Prominent examples include: Bellamy, Alex J., “Is the War on Terror Just?International Relations 19, no. 3 (September 2005), pp. 275–96; Rengger, Nicholas, “The Judgment of War: On the Idea of Legitimate Force in World Politics,” Review of International Studies 31, no. S1 (December 2005), pp. 143–61; Orend, Brian, The Morality of War (Peterborough, ON: Broadview Press, 2006); Johnson, James Turner, “The Just War Idea: The State of the Question,” Social Philosophy and Policy 23, no. 1 (January 2006), pp. 167–95; Heinze, Eric A. and Steele, Brent J., eds., Ethics, Authority and War: Non-State Actors and the Just War Tradition (New York: Palgrave Macmillan, 2008); Bellamy, Alex J., “When Is it Right to Fight? International Law and Jus ad Bellum,” Journal of Military Ethics 8 (September 2009), pp. 231–55; Strawser, Bradley Jay, “Moral Predators: The Duty to Employ Uninhabited Aerial Vehicles,” Journal of Military Ethics 9, no. 4 (December 2010), pp. 342–68; and Johnson, James Turner, “Humanitarian Intervention after Iraq: Just War and International Law Perspectives,” Journal of Military Ethics 5, no. 2 (August 2006), pp. 114–27. See also the articles in a special issue of the Journal of Military Ethics 10, no. 3 (September 2011) entitled “The Just War Tradition and the Crisis of Jus ad Bellum.”

3 Brunstetter, Daniel and Braun, Megan, “The Implications of Drones on the Just War Tradition,” Ethics & International Affairs 25, no. 3 (September 2011), pp. 337–58; Williams, John, “Space, Scale and Just War: Meeting the Challenge of Humanitarian Intervention and Trans-National Terrorism,” Review of International Studies 34, no. 4 (October 2008), pp. 581600; p. 598; and Kreps, Sarah and Kaag, John, “The Use of Unmanned Aerial Vehicles in Contemporary Conflict: A Legal and Ethical Analysis,” Polity 44, no. 2 (April 2012), pp. 260–85; pp. 278 and 280.

4 Coady, C. A. J., Morality and Political Violence (Cambridge: Cambridge University Press, 2008), p. 4.

5 Heinze, Eric A., “The Evolution of International Law in Light of the ‘Global War on Terror,’Review of International Studies 37, no. 3 (July 2011), pp. 1069–94; pp. 1080, 1082, and 1091.

6 Walzer, Michael, “On Fighting Terrorism Justly,” International Relations 21, no. 4 (December 2007), pp. 480–84; p. 480.

7 Cited in “Transcript of Thursday's Democratic presidential debate,” CNN, last modified January 31, 2008; www.cnn.com/2008/POLITICS/01/31/dem.debate.transcript/index.html.

8 Megan Braun, “The Obama Doctrine: Drones and Just Wars,” Foreign Policy, September 25, 2012; afpak.foreignpolicy.com/posts/2012/09/25/obama_doctrine_drones.

9 Peter Bergen and Megan Braun, “Drone is Obama's Weapon of Choice,” CNN, September 25, 2012; edition.cnn.com/2012/09/05/opinion/bergen-obama-drone/index.html?iref = allsearch.

10 Williams, “Space, Scale and Just War,” p. 597.

11 John Brennan, “The Ethics and Efficacy of the President's Counterterrorism Strategy” (remarks, Woodrow Wilson International Center for Scholars, Washington, D.C., April 30, 2012); www.cfr.org/counterterrorism/brennans-speech-counterterrorism-april-2012/p28100.

12 Strawser, “Moral Predators,” p. 344.

13 Brunstetter and Braun, “The Implications of Drones,” p. 348.

14 “Year of the Drone,” New America Foundation, counterterrorism.newamerica.net/drones.

15 Anderson, Kenneth, “Efficiency in Bello and ad Bellum: Making the Use of Force Too Easy?” in Finkelstein, Claire and Ohlin, Jens David, eds., Targeted Killings: Law and Morality in an Asymmetric World (Oxford: Oxford University Press, 2012), pp. 374402; p. 388.

16 For example, see Shaw, Martin, “Risk-Transfer Militarism, Small Massacres and the Historical Legitimacy of War,” International Relations 16, no. 3 (December 2002), pp. 343–59 and pp. 354–55; and Burke, Anthony, “Just War or Ethical Peace? Moral Discourses of Strategic Violence After 9/11,” International Affairs 80, no. 2 (March 2004), pp. 229353; p. 330.

17 Williams, “Space, Scale and Just War,” p. 589.

18 Bellamy, “Is the War on Terror Just?” p. 289; and Brunstetter and Braun, “The Implications of Drones,” pp. 350–51.

19 Orend, Morality of War, pp. 2–3; emphasis in the original.

20 O'Connell, Mary Ellen et al. , “The ILA Use of Force Committee's Final Report on the Definition of Armed Conflict in International Law,” in O'Connell, Mary Ellen, ed., What is War? An Investigation in the Wake of 9/11 (Leiden: Martinus Nijhoff, 2012), pp. 319–67.

21 Micah Zenko, “Between Threats and War,” Council on Foreign Relations, September 2010; www.cfr.org/united-states/between-threats-war/p22621?excerpt=1.

22 Benard, Alexander, “Lessons from Iraq and Bosnia on the Theory and Practice of No-Fly Zones,” Journal of Strategic Studies 27, no. 3 (September 2004), pp. 454–78.

23 Coady, Morality, p. 6.

24 O'Connell et al., “ILA Use of Force Committee's Final Report,” p. 332.

25 Wittes, Benjamin, Law and the Long War: The Future of Justice in the Age of Terror (New York: The Penguin Press, 2008), p. 13.

26 Rise of the Drones: Unmanned Systems and the Future of War: Hearings on H.R., Before the Subcommittee on National Security and Foreign Affairs, 111th Cong., 1st sess., March 23, 2010 (Testimony by Mr. Kenneth Anderson, Professor, Washington College of Law American University).

27 Brennan, “Ethics.”

28 United Nations Human Rights Council, A/HRC/14/24/Add.6, “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston,” May 28, 2010; www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf.

29 Anderson, “Efficiency,” p. 398.

30 Brunstetter and Braun, “The Implications of Drones,” pp. 345–46.

31 Braun, “The Obama Doctrine.”

32 Scott Shane, “Election Spurred a Move to Codify U.S. Drone Policy,” New York Times, November 24, 2012; www.nytimes.com/2012/11/25/world/white-house-presses-for-drone-rule-book.html?hp&_r=0.

33 Walzer, Michael, “Regime Change and Just War,” Dissent 53, no. 3 (Summer 2006), pp. 103–108.

34 Coady, Morality, p. 93.

35 Coady, Morality, p. 91.

36 Walzer, “On Fighting Terrorism Justly,” p. 482.

37 Daniel Brunstetter, “Can We Wage a Just Drone War?” The Atlantic (July 2012); www.theatlantic.com/technology/archive/2012/07/can-we-wage-a-just-drone-war/260055/.

38 Orend, Morality of War, p. 60.

39 Hurka, Thomas, “Proportionality in the Morality of War,” Philosophy and Public Affairs 33 (January 2005), pp. 3466; p. 37.

40 Burke, “Just War or Ethical Peace?” p. 330.

41 Harbour, Frances V., “Reasonable Probability of Success as a Moral Criterion in the Western Just War Tradition,” Journal of Military Ethics 10, no. 3 (September 2011), pp. 230–41; pp. 231 and 234.

42 We thank an anonymous reviewer for suggesting this term.

43 Pattison, James, “The Ethics of Humanitarian Intervention in Libya,” Ethics & International Affairs 25, no. 3 (Fall 2011), pp. 17.

44 “Death from the Skies,” The Economist; www.economist.com/node/21562922.

45 Walzer, Just and Unjust Wars, pp. 153–54; and Shaw, “Risk-Transfer Militarism,” pp. 354–55.

46 Bellamy, “When is it Right to Fight?” p. 243.

47 Brown, Davis, “Proportionality in Modern Just War Theory: A Tort Based Approach,” Journal of Military Ethics 10, no. 3 (September 2011), pp. 213–29; pp. 216–17.

48 Walzer, “Regime Change.”

49 Bellamy, “When Is It Right to Fight?” p. 240.

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Ethics & International Affairs
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