“Jus in Bello Proportionality and Unjust Wars”
Stephen N. Woodside, USMA
Jus ad bellum (JAB) and jus in bello (JIB) are the two main constituents of just war theory. JAB lists six criteria that are necessary and sufficient for a war’s being just. Two of these criteria are that a war is just only if it has a just cause, usually some kind of resistance to aggression, and its relevant good effects will outweigh the harm it causes (JAB proportionality). JIB says that an individual act of war (fighting) is just if, and only if, it is directed at legitimate military targets (discrimination), it serves some military purpose (military necessity), and its relevant good effects outweigh the harm it causes (JIB proportionality). While JAB is used to assess the actions of politicians or others who choose to wage war and JIB to assess the fighting of combatants, there is some question as to the relationship, if any, between them.
In Just and Unjust Wars, Michael Walzer argues that JIB and JAB are “logically independent,” and that “[i]t is perfectly possible for a just war to be fought unjustly and for an unjust war to be fought in strict accordance with [JIB].” That a soldier fighting a just war, a just combatant, can fight unjustly seems obvious; however the claim that a soldier fighting an unjust war, an unjust combatant, can fight justly is controversial. Although this latter claim (hereafter, the traditional view) does have prima facie appeal, it is problematic. For it implies that an unjust combatant can satisfy the JIB criterion of proportionality, that the relevant good effects of his fighting can outweigh the harm it causes. There are good reasons to question this implication.
In the following essay, I will argue that the traditional view is false, that it is not possible for an unjust combatant to fight justly. Whenever he fights, no matter what the circumstances (i.e. conscription, ignorance, etc.), he is morally wrong to do so. Following Thomas Hurka, I will argue that the traditional view is false because an unjust combatant cannot satisfy JIB proportionality. In “Proportionality in the Morality of War,” Hurka offers a very convincing argument for this conclusion. Most of the support for my thesis will come in the form of an explanation and defense of Hurka’s argument. I will offer some additional rationale for his premises that I hope will make his argument more persuasive. I’ll then consider and answer some objections. In conclusion, I’ll discuss some implications of the traditional view’s being false. First though, we should consider some common arguments for the traditional view.
I. Arguments for the Traditional View
As Hurka points out, the traditional view “is affirmed in the Preamble to Additional Protocol I [of the Geneva Conventions], which says its provisions apply to all persons ‘without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused or attributed to the Parties to the conflicts.’” At the very least, this allows that an unjust combatant can fight legally. But this hardly entails that he can fight justly, no more than lying’s being legal (in most cases) entails that we are morally permitted to do so. But perhaps international law’s endorsement suggests that the traditional view, the moral claim, is correct. Most combatants, just and unjust, accept this law as a good thing. Perhaps this is because they believe that it accurately reflects a moral truth, the traditional view. After all, the traditional view does have some intuitive appeal. However, I believe that most of this intuitive appeal stems from some questionable arguments, a few of which are suggested by Michael Walzer. I’ll discuss some of these now.
Walzer says of Germany’s most distinguished WWII general, Erwin Rommel, that “He fought a bad war well, not only militarily but also morally.” He describes how Rommel refused to follow Hitler’s Commando Order (CO), which mandated that all enemy soldiers behind German lines, including prisoners, be shot. Walzer goes on to write, “…I am sure, nevertheless, that Rommel should be praised for burning the Commando Order, and everyone who writes about these matters seems equally sure, and that implies something very important about the nature of war.” Walzer seems to be suggesting that our finding Rommel’s action praiseworthy implies that the traditional view is true. Here’s the argument in standard form:
1. Rommel was morally praiseworthy for refusing to follow the CO.
2. If (1), then his refusing to follow the CO was morally right.
3. If his refusing to follow the CO was morally right, then the traditional view is true.
4. Therefore, the traditional view is true.
While premises one and two of this argument seem plausible, I believe that premise three is clearly false. It does not follow from the claim that Rommel’s refusing to follow the CO was morally right that he fought justly. Certainly Rommel’s action’s being morally right does entail that unjust combatants can perform morally right actions during war. No one would deny this. But this hardly implies that the traditional view is true, that an unjust combatant can fight justly. The relevant question is this: Can an unjust combatant ever be just, or morally permitted, to intentionally harm enemy soldiers? Again, it seems clear that he can be morally permitted, or perhaps even obligated, to not harm them, but this does not entail that the traditional view is true. Therefore, premise three is false and the argument is unsound.
A second argument for the traditional view suggested by Walzer begins with the claim that “by and large we don’t blame a soldier, even a general, who fights for his own government” even if his cause is unjust. Although Walzer seems willing to extend this lack of blame to all soldiers, I’ll restrict it to a more plausible group. Suppose that Private Woodside was drafted to serve in an unjust war that he justifiably believes is just. Woodside’s war is unjust because it lacks a just cause. If the traditional view is false, then Woodside, in spite of his being drafted and justifiably believing that his war is just, cannot fight justly. He is morally wrong to fight. And if he’s morally wrong to fight, then he’s morally blameworthy for fighting. But he’s not blameworthy for fighting. He was drafted to fight. Furthermore, he has good evidence to suggest that his war is a just one. He justifiably believes that he’s doing the right thing by fighting. Therefore, the traditional view is true. Here’s the argument:
1. If the traditional view is false, then Woodside is morally wrong to fight.
2. If Woodside is morally wrong to fight, then he’s morally blameworthy for fighting.
3. But he’s not morally blameworthy for fighting.
4. Therefore, the traditional view is true.
This argument is unsound. While premises one and three are true, premise two is false. Premise two appeals to the general principle that if one is morally wrong to perform action x, then he is morally blameworthy for performing x. This principle is false. Consider a three-year-old who is taught by her parents to believe that it’s okay (morally permissible) to steal lollipops from other small children. She has no good reason to believe otherwise. One day the small child asks her mother for a lollipop. The mother tells her to take it from the neighbor’s child sitting right next to her. The child sees no problem with this and complies. Although it’s clear that the child had done something wrong, it’s equally clear that we don’t blame her for it. If I am right, then premise two is false, and the argument fails.
One final argument for the traditional view suggested by Walzer is that just combatants, like their unjust counterparts, have given up their right not to be harmed. This is because, according to Walzer, a person has a right to life only if he “is not threatening me” and his “activities have the savor of peace…” But soldiers “are set apart from the world of peaceful activity; they are trained to fight, provided with weapons, required to fight on command...” So unjust combatants can permissibly fight their just counterparts since both have forfeited their right not to be harmed. Therefore, the traditional view is true. Here’s the argument:
1. All soldiers have forfeited their right not to be harmed.
2. If (1), then the traditional view is true.
3. Therefore, the traditional view is true.
While premise one is quite controversial, I believe that there is a more serious problem with premise two. Premise one does seem to entail that an unjust combatant can satisfy discrimination. That just combatants have forfeited their right not to be harmed seems to imply that they are legitimate targets. But it does not imply that an unjust combatant can satisfy JIB proportionality, that the good effects of his fighting a legitimate target can outweigh its bad effects. The same is true for the fighting of just combatants. While they can satisfy discrimination in targeting their unjust counterparts, this does not entail that they can do so proportionally. Certainly just combatants can do so, but this is not a logical consequence of their being able to satisfy discrimination.
While it seems true that unjust combatants can perform morally right actions and that some are not to blame for fighting, neither of these claims entails that unjust combatants can fight justly. Neither proves that an unjust combatant can satisfy the JIB criteria of discrimination and proportionality. And even if we assume that all soldiers lose their right not to be harmed, it’s difficult to see what implications this has for JIB proportionality.
II. Why the Traditional View is False
Again, unjust combatants can fight justly only if they can satisfy JIB proportionality. In the previous section, I argued that various arguments for the traditional view fail to prove that they can do this. However, it remains to be proven that unjust combatants cannot satisfy JIB proportionality. I believe that Hurka’s argument accomplishes this. In this section, I hope to make this evident.
Recall Private Woodside who is fighting a war that lacks a just cause. Woodside is an unjust combatant. Can he fight justly? Can his fighting satisfy JIB proportionality? Can the relevant good effects of his fighting outweigh its bad effects? Hurka argues that they cannot because “[s]ome restriction is needed on the goods that count toward proportionality.” He proposes that goods are relevant only if they contribute to a JAB just cause. And since Woodside’s war has no JAB just cause, his fighting can never contribute to one. Consequently, his fighting can never produce relevant goods. Therefore, he cannot fight justly. Simply stated, “Whether an act in war is in bello proportionate depends on the relevant good it does, which in turn depends on its ad bellum just causes.” Here’s the argument:
1. An unjust combatant can fight justly only if his fighting can satisfy JIB proportionality.
2. His fighting can satisfy JIB proportionality only if it can produce relevant goods.
3. His fighting can produce relevant goods only if it can contribute to a JAB just cause.
4. But his fighting cannot contribute to a JAB just cause.
5. Therefore, an unjust combatant cannot fight justly.
Premises one, two, and four are fairly straightforward. If we accept the JIB criteria, then we must accept premise one. Premise two seems plausible if we consider that fighting necessarily produces some bad effects. If this is true, then Woodside must be able produce some goods relevant to the proportionality calculation that will outweigh these bad effects. Regarding premise four, Woodside’s fighting cannot contribute to a JAB just cause because his war does not have one.
But what about premise three? Why is it that only those goods that contribute to a JAB just cause are relevant? Why don’t we count all the good effects caused by a soldier’s fighting in calculating JIB proportionality? After all, most of us believe that we should count all the bad effects. Why the asymmetry? Hurka does consider this “quasi-consequentialist” view of proportionality, that all the good effects are relevant. But Hurka argues that this view has unsatisfactory implications. For it would allow that some seemingly trivial goods like “satisfy[ing] the desires of soldiers tired of training and eager for combat” might make a soldier’s fighting just. And as Hurka notes, “[A]n otherwise disproportionate war [or act in war] cannot become permissible because it has these effects.” And this seems true whether the combatant is just or unjust. For example, suppose that the quasi-consequentialist view is true. I am a just combatant and I drop a bomb on a legitimate target. This action is necessary to achieve my military goal of destroying an enemy depot. However my action, while discriminate and necessary, is not proportionate. The total good effects of my action do not outweigh the bad effects. But it’s very close. So close, in fact, that were I to receive a Distinguished Flying Cross (DFC) for this action, the total good would outweigh the total bad. So according to the quasi-consequentialist view, if I receive the DFC, then my action is just. If I don’t, then it’s unjust. This seems to suggest that the quasi-consequentialist view is false.
One possible objection to this reasoning is that that my earning the DFC, while a relevant good, is of too small a value to tip the proportionality scale in the action’s favor. It’s not that earning the DFC is of the wrong type of good. It’s just too small to make the action proportionate. If this reasoning is correct, then the quasi-consequentialist view does not imply that my earning the DFC would make the action proportionate. But this objection misses the point. I agree that it’s highly unlikely that there would ever be an action teetering on the proportionality scale such that my earning the DFC would tip it. But it remains true that according to the quasi-consequentialist view, if there ever were such an action, then my earning the DFC would make it just. If the DFC is a relevant good, then it adds something to the proportionality calculation. Therefore, in theory, the DFC could make some otherwise disproportionate actions proportionate.
The quasi-consequentialist view’s being false suggests only that some types of goods are irrelevant to the proportionality calculation. It does not directly support the claim that relevant goods are only those that contribute to a JAB just cause. But I do believe that our intuitions about the DFC are highly suggestive of this. That is, I believe that the best explanation for our not counting the DFC as relevant is that it does not contribute to a JAB just cause. If I am right, then premise three is true.
There is, however, a more compelling objection to the notion that a good is relevant only if it contributes to a JAB just cause. McMahan writes:
…suppose that just combatants were to attempt to coerce the surrender of their opponents by attacking a population of innocent civilians. It would be permissible, if necessary, for unjust combatants to use military force against the just combatants to prevent this…In these circumstances, the good that the unjust combatants’ action would achieve—saving the lives of innocents—would weigh against the harm it would cause to the just combatants, thereby making the action proportionate. This, therefore, is an act of war by unjust combatants against just combatants that is proportionate and permissible.
McMahan’s counterexample is convincing. In spite of the unjust combatants’ inability to contribute to a JAB just cause, their attack seems nevertheless permissible, if not obligatory. But if their attack is a permissible act of war, then it follows that it’s also proportional. And if it’s proportional, then, according to premise three, it must contribute to a JAB just cause. But it doesn’t. If anything, it contributes to their unjust cause. So, if McMahan is right, then premise three is false. For according to premise three, the unjust combatants, in saving the civilians, are not producing relevant goods.
One possible reply is that although the unjust combatants have acted rightly, they are merely “enforcing morality.” This is not an act of war. So, it’s not a genuine counterexample to the claim that an unjust combatant cannot produce relevant goods. But is there any good reason to disqualify this as an act of war other than that it “enforces morality?” After all, one would think that acts of war can also enforce morality. Perhaps there’s a better reason though. Suppose that the just combatants attacking the civilians were an elite unit, whose elimination would guarantee the victory of the unjust nation. And this victory would lead to disastrous consequences. So, although saving the civilians would be a very good thing, it wouldn’t be enough to outweigh the harm that killing the elite unit would cause. One might argue that, even in light of these consequentialist considerations, the unjust combatants are morally permitted to come to the support of the innocent civilians. But if this is true, then their intervention cannot be an act of war. This is because an act of war is just only if it is proportional. This reply is somewhat plausible, for it does follow that the intervention would not be an act of war if it were disproportionate and permissible. But I believe that our intuitions on whether the disproportionate intervention would be permissible are far too unsettled for this reply to be decisive.
Another reply is that the unjust combatants’ saving the civilians does contribute to a JAB just cause. It contributes to stopping the wrongful aggression of the “just” combatants. And while the cause of their war is unjust, the cause that they are fighting for in this particular instance is “of a sort that is in principle capable of justifying war…” If this is true, these goods are relevant. And this is why they can satisfy JIB proportionality. So there is no problem with premise three. But while accepting this reasoning would not conflict with premise three, it would reject premise four, that an unjust combatant cannot contribute to a JAB just cause.
So where does all this leave us? If we don’t accept McMahan’s counterexample, then Hurka’s argument seems to be sounds as it stands. If we do accept it, then Hurka’s argument must be amended slightly to derive the more limited conclusion that an unjust combatant cannot fight justly unless he is fighting to prevent war crimes by just combatants. So either unjust combatants cannot fight justly at all, or they can fight justly only in extreme circumstances. And if the latter is true, then the traditional view, at least in spirit, is still proven to be false. For surely proponents of the traditional view have more in mind than this limited claim in arguing that unjust combatants can fight justly. After all, “an unjust war cannot consist entirely, or even predominately, of acts of this sort…”
Following Hurka, I have argued that unjust combatants cannot fight justly. Again, this is because they cannot satisfy JIB proportionality since their fighting cannot produce relevant goods. And while there may be extreme circumstances where they can do this, the traditional view is nevertheless false. In conclusion, I’d like to discuss a few implications of this conclusion. Although some of these implications are somewhat controversial, I believe that we might welcome them.
The traditional view’s being false does allow that soldiers fighting in wars that are unjust for reasons other than an unjust cause can fight justly. Hurka provides an example of the type of case that I have in mind. He points out that NATO would have had a just cause if it had decided respond to the Soviet Union’s aggression towards Czechoslovakia in 1968. But this war of defense would have been disproportionate since it was likely to provoke a nuclear holocaust. Now suppose that NATO did wage war against the Soviets. In that case, NATO soldiers could have fought justly even though their war was unjust. Because their unjust war had a just cause, resisting aggression, they could produce relevant goods And because they could produce relevant goods, they could satisfy JIB proportionality. So given that the Soviets would be legitimate targets, the NATO soldiers could fight justly in an unjust war.
As I mentioned earlier, it follows from the traditional view’s being false that extenuating circumstances such as conscription, ignorance, etc. cannot justify an unjust combatant’s fighting. But this does not mean that they are irrelevant to the assessment of moral blame and/or punishment. As I argued earlier, it does not follow from the claim that an unjust combatants is morally wrong to fight, that he is morally blameworthy for fighting. Nor does it entail that all actions performed by unjust combatants are morally wrong. They are simply morally wrong to fight.
One final implication that I would like to discuss does give some cause for concern. If an unjust combatant cannot fight justly, then he would be morally wrong to fight. And if he’d be morally wrong to fight, then he has a moral obligation to not fight. There is no getting around this conclusion if the traditional view is false. But I do recognize that there are some very compelling reasons for resisting it, for an unjust combatant who refuses to fight is guilty of a legal crime, for which he can face severe consequences. It seems rather unfair to expect him to face severe punishment considering that he is legally obligated to fight, and that by fighting, he will avoid this punishment. Furthermore, what about his commitment to his unit or any oaths that he has taken? Do we really expect him to refuse to fight in light of all this? If by ‘expect’ we mean ‘anticipate,’ then my answer is ‘no,’ especially if the unjust combatant believes that his cause is just. But the “hard right” is no less right if we anticipate that one will not perform it. However, if by ‘expect’ we mean ‘want,’ my answer is ‘yes.’ After all, don’t we want people to do what’s morally required of them? Or at the very least, it seems that we ought to want this.
 Michael Walzer, Just and Unjust Wars, 4th Ed (Basic Books: 1977), p. 21.
 I borrow the terms “just combatant” and “unjust combatant” from Jeff McMahan. And like McMahan, I use ‘unjust combatant’ to refer to a soldier fighting a war that lacks a just cause.
 Later, I will argue that although circumstances such as conscription, ignorance, etc. are irrelevant to the action’s being just, they are still morally relevant in assigning blame and punishment.
 Thomas Hurka, “Proportionality in the Morality of War,” in Philosophy and Public Affairs 33 (2005), p. 44.
 Walzer, p. 38.
 Regarding premise one, one might believe that Rommel was morally obligated to refuse to follow the CO. He might also believe that an agent is morally praiseworthy only if his action is supererogatory. If both of these beliefs are true, then it would follow that Rommel was not praiseworthy for refusing to follow the CO. However, there is good reason to believe that the performance of some morally obligatory actions, given the pressures on the agent, is morally praiseworthy. Rommel’s action might qualify as one of these. However, I believe that premise two is less controversial than premise one. While extenuating circumstances might excuse an agent for performing a morally wrong action, it seems implausible that we would praise him for it. So it seems plausible to suggest that an agent is morally praiseworthy for performing an action only if it’s morally right. In any case, I will focus on a more obvious problem with Walzer’s argument.
 Walzer, p. 39.
 Ibid., p. 142.
 Ibid., p. 144.
 See Jeff McMahan, “The Ethics of Killing in War,” in Ethics 114 (2004), p. 706. McMahan argues pace Walzer that “Just combatants, in taking up arms in a just cause—most commonly, defense against unjust aggression—do nothing to lose their right not to be attacked or killed or to make themselves morally liable to attack; the are innocent in the relevant sense. Merely posing a threat to the unjust combatants who have attacked them is…not enough to make them liable.”
 To be fair, Walzer’s seems to see discrimination, not JIB proportionality, as the controversial criterion in defending the traditional view. So this argument might be meant to prove only that an unjust combatant can satisfy discrimination. Nevertheless, while he makes a strong case that JIB proportionality does not allow one to override discrimination (except, perhaps, in extreme cases), he fails to prove that unjust combatants can satisfy the former.
 Hurka, p. 40.
 Ibid., p. 45.
 This is dependent on the claim that a human being’s being harmed is a bad effect. Of course, the bad effect of an unjust combatant’s being harmed might lead to some good effects. For example, although it might be bad that an unjust combatant is harmed, this might lead to the good of a just cause being achieved.
 There is at least one possible objection to this premise that I will consider later.
 Hurka, p. 39. He calls it “quasi-consequentialist” since the action can still be “wrong if it violates other just war conditions…”
 Ibid., p. 40.
 Ibid. To be clear, the quasi-consequentialist view does not imply that goods of this sort can, by themselves, make fighting proportionate. Yet it still seems troubling that these types of goods can make otherwise disproportionate fighting proportionate.
 McMahan offers the following reasoning for this qualification: “If the unjust combatants could avert the wrongful action of the just combatants by surrendering, thereby ending their unjust war, they ought to do that rather than attack the just combatants…So, while it may be permissible for them to attack the just combatants in these circumstances, it is nevertheless important to note that the permissibility of their doing so is conditional on their being unable to avert the wrongful action by terminating their own unjust war.” McMahan, p. 712.
 Ibid., p. 710.
 Ibid., p. 713.
 Suppose that the problem is with premise four. We can reformulate the argument to validly derive the more limited conclusion:
1. An unjust combatant can fight justly only if his fighting can satisfy JIB proportionality. (J→P)
2. His fighting can satisfy JIB proportionality only if it produces relevant goods. (P→R)
3. It produces relevant goods only if it contributes to a JAB just cause. (R→C)
4. His fighting does not contribute to a JAB just cause unless they are fighting in extreme circumstances. (C→E)
5. Therefore, an unjust combatant cannot fight justly unless they are fighting in extreme circumstances. (J→E)
 McMahan, p. 714.
 See note 2.
 Hurka, pp. 35-6.