Reconsidering the Legal Equality of Combatants

ABSTRACT

The legal equality of combatants (LEC) is a fixture of international law and just war theory. Both scholars who embrace and those who reject the moral equality of combatants seem committed to the legal equality of combatants. Their reasons usually include pragmatic worries about unjust combatants committing even more harm if they were to be simply prohibited from fighting. In this article I argue that this sweeping commitment to the legal equality of combatants is mistaken and that it is often grounded in a misunderstanding of the way international law governs behavior.     

Right Intention and the Ends of War

The jus ad bellum criterion of right intention (CRI) is a central guiding principle of just war theory. It asserts that a country’s resort to war is just only if that country resorts to war for the right reasons. However, there is significant confusion, and little consensus, about how to specify the CRI. We seek to clear up this confusion by evaluating several distinct ways of understanding the criterion. On one understanding, a state’s resort to war is just only if it plans to adhere to the principles of just war while achieving its just cause. We argue that the first understanding makes the CRI superfluous, because it can be subsumed under the probability of success criterion. On a second understanding, a resort to war is just only if a state’s motives, which explain its resort to war, are of the right kind. We argue that this second understanding of the CRI makes it a significant further obstacle to justifying war. However, this second understanding faces a possible infinite regress problem, which, left unresolved, leaves us without a plausible interpretation of the CRI. This constitutes a significant and novel reason for leaving the CRI out of the international law of armed conflict (LOAC).     

At war with social theory: Instrumental and communicative action in US military doctrine during the War on Terror

As US counterinsurgency campaigns draw to a close, doctrine for asymmetric warfare written during the War on Terror has come under heavy criticism. While many have argued that this shift to ‘winning hearts and minds’ is evidence that the United States is taking humanitarianism and nation-building seriously, others argue that a wide gap exists between US counterinsurgency doctrine and the protection of civilians afflicted by conflict. In this article, I show that the latter is true by comparing theories of instrumental and communicative action to US doctrine for operational design, stability operations, and counterinsurgency. I argue that these texts treat the people as an object to be manipulated for the achievement of pre-determined self-interested strategic goals rather than members of a community that jointly designs operations to fulfill shared objectives. However, US doctrine does contain communicative elements that, if prioritized, would better support humanitarian and state-building objectives otherwise subordinated in the War on Terror.