Steve Watson

Second – and this may matter more – the division of the casualties into non-combatants and combatants is disputed for the Gazan side. By their own telling, almost all the casualties are women and children and other innocent bystanders; but this is a claim that clearly serves their propaganda purposes and seems to be inconsistent with statistical analyses of the demographic profile of the casualties. The Israelis claim that the greater part of the casualties consists of HAMAS operatives of one kind or another. It should be noted that similar disputed claims in previous Israeli-Arab clashes have eventually shown that an accurate accounting is much closer to the initial Israeli estimates than to the Arab claims. Given that Israel is a professional modern army and its society has many routes of independent accountability, this should come as no surprise. Nevertheless, we shall consider two cases: ‘CD-A’ will label the case where 90% of the casualties are civilians and ‘B’ will label the case where 50% are.

How is the proportionality rule to be understood?

The reason that proportionality is fixed on as a point of complaint in this war is surely that proportionality is one of the criteria for a Just War in modern Just War theory. Actually, it is two of the criteria, since it occurs both in jus ad bellum and in jus in bello. We can think of them easily enough as two versions of the same rule So far as the first goes, it is claimed that in a just war the act of going to war is a proportional response to the evil that otherwise justifies the war. We can call this the first criterion of proportionality, and label it P1. The second rule, P2, requires that the harm caused by actions taken in a war should be proportional to the goods that are sought by those actions. Clearly, P1 and P2 are versions of the same rule,

P: that the harm caused by an action (or course of actions) ought to be proportional to the good gained.

There is a question that arises even before we look for the justifying moral theory for this rule P, and that is whether the judgement of justness is to be made as a judgement on the actor or the action. We typically speak as if we are judging the actions themselves, but the way the rule is phrased in P takes no account of the intentions of the actor. Is this reasonable? If it is not reasonable, then we could rephrase the rule as

P_int: that the harm intended by an action (or course of actions) ought to be proportional to the good intended.

Then again, we need to ask whether this ignores the important aspect of what the actor reasonably expects to happen. Should the rule be rather,

P_exp: that the harm foreseen by an action (or course of actions) ought to be proportional to the good foreseen.

Where’s the justification for the proportionality rule?

The fundamental difficulty with JWT is that it is usually presented as if it has no foundation in any fundamental ethical theory such as utilitarianism or Kantian ethics, but simply appears at the level of general claims about specific kinds of actions. This means that when a question arises over the judgement of some action, we have no deeper theory from which to derive an answer, but must either appeal to casuistry and the application of principles of analogy etc. to the (not very) fundamental previously accepted truths, or simply point to our intuitions.

This is obvious to almost everyone who works in this area, but is hardly taken seriously as a problem. For example, an effort is made by Hurka (T., ‘Philosophy & Public Affairs, 2005, 33:1, pp. 34-66) to investigate and clarify the notion of proportionality directly, but he repeatedly comes up against the lack of general theory that should motivate these supposed principles of justice in war; and he recognises the difficulty, but he does not make any move to address it effectively.

Hurka notes (pp. 39 f,) for example, that some (James Turner Johnson, Morality and Contemporary Warfare, New Haven, Conn.: Yale University Press, 1999, pp. 27–28 – referring to ius ad bellum proportionality) have suggested that proportionality need only mean that the total good resulting should outweigh the total bad resulting. But even if it is accepted that optimality is not required – And why shouldn’t it be? No answer – the claim lacks plausibility. What if an action in pursuit of a just cause leads to some slight excess of harm over good? Is it just obvious that that makes it unjust? It isn’t obvious to me. The fact that optimality is not required means that we are not dealing with a pure consequentialism here; but then, what is it? The situation of a slight excess of harm might be accounted for if we weighed the goods more heavily than the harms (Douglas Lackey, The Ethics of War and Peace, Englewood Cliffs, NJ: Prentice-Hall, 1989, pp. 40–41), so that in the calculation the harms would have to very much outweigh the goods before the proportionality criterion would take effect. But what could be the justification for such a weighting other than an ad hoc fix to a faulty moral calculator? The difficulty may be that whereas it makes sense to count the total harms, it doesn’t make equal sense to count the total goods, but only those goods relevant to the justification of the war – which justification is not to be made on pure consequentialist grounds – otherwise we’d count all sorts of irrelevant benefits achieved through violence as making that violence acceptable (just.) But then we have the further problem of deciding precisely how widely the net of relevant goods needs to be cast; and for that we’d need some general principle or theory that tells us the conditions required for relevance – and we have no such theory.

And so it continues. A thoroughly typical expression of exasperation is found on page 57:

when it can find some more abstract value that underlies them and see how far each instantiates that value. But the considerations in play here seem irreducibly diverse: political self-determination and the protection of a national home on the one side, death and suffering on the other. This leaves their comparison to direct intuition …

Nonetheless, he continues, “I hope to have vindicated the common-sense view that …”; but he hasn’t: he has only shown us where our intuitions take us in several special cases. We will get nowhere until we get more basic.

Notwithstanding references to Cicero or Augustine or to other naïve first steps towards a theory of moral warfare, the basic shape of modern JWT is due to work done in the tradition of St Thomas Aquinas. The roots of JWT are found in the Summa Theologiae II-II, 40, in which it is stated that

In order for a war to be just, three things are necessary. First, the authority of the sovereign by whose command the war is to be waged. …

Secondly, a just cause is required, namely that those who are attacked, should be attacked because they deserve it on account of some fault. …

Thirdly, it is necessary that the belligerents should have a rightful intention, so that they intend the advancement of good, or the avoidance of evil.

These criteria, however, are derived by Aquinas according to his own understanding of the sources of morality in the Natural Law imposed by God upon the World. That Law we can come to know through reason, on the assumption that it is intended by the Lawgiver for the benefit of those for whom He is responsible and over whom He has authority. God, being reasonable, will make to be the case that which reason shows must be the case if God’s purposes are to be achieved. And because God is good, the purpose of God’s laws will be human flourishing. Therefore, to discover what God’s laws are, we need only ask what laws would lead to human flourishing.

The difficulties this poses for our question are many and obvious. The most significant problem is that if God is denied – as He usually is in modern philosophy – then morality is basically without any foundation. This is now a commonplace observation – especially since G. E. M. Anscombe (‘Modern Moral Philosophy’, Philosophy 33, No. 124 (January 1958).) But even if we accepted the assumptions necessary to Aquinas’s scheme, the only principle that lies underneath the various rules to be adopted as a moral code is that we think (or agree) that by treating those rules as if they had moral force humans would flourish (or, alternatively, that we think that if everyone actually followed those rules humans would flourish.) The argument then moves on to justifying the claim about the increased likelihood of flourishing, or perhaps we would need to deal with the definition of flourishing.