Justice, just war, and the killing of Osama bin Laden

This story asks whether it’s wrong to celebrate bin Laden’s death. It quotes, among others, moral philosopher Christine Korsgaard who says:

“Most people believe that the killing we do in war is justified as the only way to disable an enemy whose cause we believe to be unjust…. And although it is more controversial, many people believe, or at least feel, that those who kill deserve to die as retribution for their crimes.

“But if we confuse the desire to defeat an enemy with the desire for retribution against a criminal, we risk forming attitudes that are unjustified and ugly — the attitude that our enemy’s death is not merely a means to disabling him, but is in itself a kind of a victory for us, or perhaps even the attitude that our enemy deserves death because he is our enemy.”

This is an important point. Just war theory–at least in its modern incarnations–holds that the use of force is justified only up to the point of stopping an aggressor. It’s not about meting out justice in the sense of giving someone what they deserve. If it’s possible to stop an act of aggression without killing the aggressor, then just war theory requires we use only the minimum amount of force required to do that. Strictly speaking, any killing is supposed to be an unintended (albeit often forseeable) side-effect of using only the force necessary to disable the enemy.

Of course, in practice it’s often very difficult to determine just where this line is between necessary and excessive force. But observing the distinction would certainly, I think, call into question many of the tactics of modern war. And whether the killing of bin Laden in particular was justified depends on whether it was possible to apprehend or otherwise disable him without killing him. It seems unlikely that we’ll ever know the truth of that for sure. Therefore, from this perspective, we’re not really in a position to say with 100 percent certainty that “justice was done” in the killing of bin Laden.

UPDATE: Just to clarify, I’m not saying that bin Laden didn’t “deserve to die” in some moral sense. What I’m saying is that just war theory, as Christine Korsgaard points out, isn’t about punishment of the guilty so much as setting out the proper conditions for using force to protect the innocent and repel aggression. The question of justice in war is distinct from the question of justice as it relates to bin Laden’s personal guilt and what punishment might be appropriate.

20 thoughts on “Justice, just war, and the killing of Osama bin Laden

  1. Any means used to protect American men, women, and children from vermin like Osama bin Laden are, by their very nature, just. Those who feel differently truly need to think long and hard about just how much they actually love America and whether or not they should continue to interact with it.

  2. Casper

    I guess you’ve probably read my post in which i referenced your previous post.

    I agree that the dividing line is difficult and there was always a good liklihood that the action would end as it did. However, the whole Afghanistan conflict and subsequent tracking of bin Laden (for which, unlike Iraq) there was a basis for action should IMO never have been framed as a JW at all, it was (or rather should have been) a police action.

    But what has so upset me is there’s no real doubt that this was anything other than a kill order and there’s a good case to be made that that that is against the US jus in bello principles (which are a lot more codified than most – see Rockwood’s ‘Walking Away from Nuremberg’).

    The US’ Lieber Code (1863) has this to say (Section IX):

    “The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such international outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation, made by whatever authority. Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism.”

    I’m not suggesting that the action was “illegal” (understood from US law alone) but the Lieber code although old was instrumental in seriously (albeit imperfectly) applying Just War criteria to the law of military operations – this weekend’s actions represent a very public U-turn on Just War theory (because the intent to kill rather than apprehend is all too clear where it may have been expressed a lot more circumspectly previously even while the same actions took place – eg Cuba etc).

    I have never been an unqualified pacifist but I feel a lot of that decision has just been made for me. More than pacifists I am really hoping the majority of Christians who are JWTers start taking their own tradition more seriously and ask questions – intial responses do not give me too much hope though.

    O, and sorry for the rant!

  3. jonolan–Please do us all a favor and spare us your insipid ad hominem comments in the future.

    Casper–Yes I saw your post and thought it was very good. And you raise a good point about JWT with respect to targeting a specific individual for assassination. I guess from a more pragmatic (consequentialist?) perspective, even if it was a kill order, I’m glad it went down the way it did (a precision job wtih Navy SEALs, etc.) rather than, say, dropping a daisy cutter on the compound. I agree that there is something disturbing in the precedent being set here, but I guess the optimistic part of me sees this as a potential opening to move the struggle against terrorism away from a war-model and back toward something more like a policing model, even though the way this was carried out may leave a lot to be desired.

  4. FWIW, the WH is now saying that the mission was to kill or capture OBL, but also that he was unarmed when he was killed, which adds to the murkiness of the whole affair.

    1. Casper

      And the the fact legal advice has been published that the AG considered OBL a ‘legitimate ,i>target does not exactl enhance the after the fact backtracked OBL ‘died while effecting capture’ spin of the Press Office. After all it’s easy to see why the WH can say confusion is due to waiting for accurate information to filter through from the ground, it’s not like they were watching it live on TV or anything ! Oh, wait a minute …


  5. I’d read that the order was just to kill, not to capture, so that’s changed now? If it was just to kill, that doesn’t seem like a police action – police aren’t sent out with orders to kill perpetrators.

  6. Originally it was reported that this was a mission to kill, but at a White House press conference today, press secretary Jay Carney said it was to kill or capture. It’s hard not to think that, at best, the WH certainly expected that OBL would be killed during the operation.

  7. Just War questions are important, and I think many people’s versions are way looser than they should be. That said, I think the sentiments aren’t something we can decide on beforehand. Sentiments just are. They can be just or unjust. But we can’t decide for what reasons we might have them as if we could plan them in advance. We might at points decide to pull back on expression of unjust ones. But I’m not sure if we always know our real reasons for our feelings with any accuracy. I’m one of the overjoyed. I think I would have been quite happy if bin Laden had been merely apprehended. But I also take joy in knowing he probably had a moment of recognition that his time of acting with impunity was at an end.

    I think this is a victory for us. We no longer need to pour our energy into his capture.

    While I agree with the principle that we should use the minimum of force necessary to stop someone, I also think that there are people who become symbolic and the risk of allowing escape changes the nature of the equation. You are not merely risking the lives of those going in to capture him, but risking losing your opportunity if you don’t take a chance when you get it, which could put many more lives at risk. An operation with a similar number of people against someone holed up in a similar compound might require very different calculations for a different kind of target who was less symbolic. I also suspect that Virtue Ethics might be helpful here over against some of the more Deontological discussions I’ve been hearing.

    1. Rick, I agree that it’s pointless to try and police people’s feelings. I wouldn’t say I was overjoyed; maybe “grim satisfaction” would better describe my state of mind. But I definitely wasn’t sad about it.

      You raise an interesting point about OBL’s symbolic status and the risks of letting him escape. Of course, if he could be apprehended alive, it seems to me that keeping him imprisoned wouldn’t be very difficult given the kind of security he’d no doubt be under.

      Also, you reasoning sounds somewhat…consequentialist! 😉

  8. What war? This was a matter of public health – the extermination of a dangerous vermin.

    Sorry (not really), I don’t partake of this tie our hands behind our back and worry about people’s precious sensibilities when it comes to removing threat to American men, women, and children.

    I actually love my country and its people and don’t place the whims of foreigners or vermin above them when the two come into conflict.

  9. Lee, I was actually thinking of how to apply Virtue Ethics to the sentiment question, rather than the Just War question. (But I can see how that wasn’t clear from where I placed the statement.) Aristotle is one of the key figures in Virtue Ethics, while also famous for writing on Just War criteria. So I don’t see those things as contradictory. What I was thinking of was the fact that we could gauge what sentiments were good by asking how good people in the past have reacted to such news. Would we think that someone who was otherwise good in their treatment of matters of war and peace was lacking in virtue if they rejoiced over something similar to this? Or not?

  10. Yeah, that makes sense. And I do believe there’s a tradition of seeing just war in virtue-ethical terms, although I’m not terribly familiar with it. I guess one issue I’ve always had with virtue ethics (and I admit to not knowing as much about it as I probably should) is that I have a hard time understanding how you can define right actions in terms of “what a good (virtuous) person would do” without having some criteria for determining what constitutes a good person. In other words, the natural way for me to understand what a virtue is is that it’s a disposition to perform the morally right actions in the appropriate circumstances. But this seems like it requires an independent criteria for identifying “right actions.” I know I must be missing something, right?

  11. Well, the primary focus is on the agent rather than the rules or the consequences, though some focus is given to both of those as well. There are cases where it’s probably more natural to focus on one or another of these. But take a case like hiding people during the Holocaust. It seems to me, a good person would do this. If we go Deontological, we will either say that there is an absolute prohibition on lying, or we will make an exception to the rule. Then another situation comes up. Do we add another exception? And how do we know when to make these exceptions? I think we make the exceptions because we already know that this is what a good person does. Well, like many such conundrums, I’m not sure if we always know what the perfect starting point is. (I’ll find someone virtuous to show me how to find one, though, before I follow a rule to one!)

    I do like how in Exodus, the commandment is about bearing false witness rather than lying in general. And how the midwives are commended for their handling of the situation. Even when we hear Satan spoken of as the father of lies, it seems that he is a model of vice, with his sons doing what he does, which fits with virtue theory. But Jesus does what he sees his father doing. The more I look, the more I find the language actually fits this way of reasoning better. I was raised thinking Deontologically, and always had trouble with certain texts. The problem texts are now some of the easier ones.

  12. Good post and good comment thread, (except for the guy who has obviously gotten lost on the internet). We (well, two of us doc students and a few commenters) have been going over these same problems on the ethics of OBLs killing over at the moralmindfield, and come to fairly similar conclusions. I’m sure we’ll be saying more on this in the future; I think we are refining our way towards some kind of virtue ethics response, but for now we’ve tried applying just war and double effect and I’m not satisfied with either yet.

  13. Thanks for the link, Brian. As to Just War criteria, I think they’re very fruitful for discussion. One way to bring Virtue Ethics in could be to see the Just War criteria more from the standpoint of the virtuous agent. Matt’s father’s V-J day story does go in the Virtue Ethics direction. (Though I think it also makes me think about how we don’t fault the young for being young. At different stages in life, I think we see these things in a broader context. We may not cease to celebrate. But we will also remember and lament the evils.) I’m not sure that when it comes to sentiment, there will be a single prescription that will fit everyone. Focus on the agent suggests that conclusions might not be able to be universalized.

    The other category to weigh in addition to justice and revenge is honor. James Bowman writes a lot about that category. While much of the history of the West has been about the destruction of honor culture so that we hardly understand the notion, it is an important concept to thinking in the Middle East and may have at least a strategic importance. Bowman has suggested that had we understood honor better, we might have understood why Saddam Hussein didn’t provide better public evidence of having disarmed.

  14. The virtuous agent is a good starting point. Now we just have to find one… (haha). The problem of course being that people will not agree on who that is. Hopefully the president and our military leadership would qualify, but I’m never very confident in politics. I think of the virtuous agent as merciful, and someone who would not order the killing of an unarmed man, whoever he might be. In fact, that could even be construed as dishonorable.

    I think we still have a lot of honor culture left in the US, it’s just affected differently among different groups. “Disrespect” is an idea to kill over in some places. The military certainly knows about honor too. I think that if we apply honor to OBL’s death, Americans will probably tend to view it as honorable, and supporters of OBL as dishonorable. And I’m not sure there’s any way to get past past the perspectival problem since it is culturally embedded and reinforced by group loyalty. What do you think?

  15. “The problem of course being that people will not agree on who that is.” That’s a reality, but as a problem, it dogs every form of ethical discussion. Deontology is about the rules, but people will not agree on what good rules are. And Pragmatism is about good consequences, but people will not agree on what those are. If universal agreement is necessary, we never have any ethics.

    As to honor, I am in partial agreement with you. Military people do talk more of honor than most people do. But in the West this has been modified a lot by Christianity. And I don’t think the question here is so much whether the other side would say that the killing was honorable. I think it’s more that they will understand, ‘We strike them, they’ll strike us back.” That message might even have transcended whether we chose the right people to strike back at when we invaded Iraq. (Holding to Just War Theory, I don’t approve of going after the wrong people. I just disagree with those who suggest that all the consequences for our reputation are bad.) So in that sense, there is little perspectival problem. There is such a problem when you ask each side whether an action was good. But not when you ask whether it was effective. It communicates well, “Don’t mess with us unless you want a heap of trouble.”

  16. Yeah, heaps of trouble are what everybody involved in this has, no doubt. You are right that clear actions like killing may be more effective and less ambiguous than less clear actions like capture; effectiveness being more clear than goodness. But how will we ever advance beyond assuming our enemies are dogs to be trained rather than human beings to be respected if we never treat them as humans? The same goes for the enemy here, in their treatment of Westerners.

    But I think that when Christ told us to love our enemies it was for the sake of maturing both involved parties from seeing each other as dogs to seeing each other as humans. The whole situation is a mess of messes. Perhaps the recent revolutions in so many Muslim countries will do something towards changing the root causes of the problems.

    The real solution cannot come through violence and fear, it will have to come from the rejection of those, because ultimately, we are not willing to kill our way to peace (nor should we be willing to do so, “to create a desert and call it peace”). And if we are unwilling to do that, then we must find a completely different way to “win” and that way has to make our opponent feel like they “win” too. Which may involved completely changing their perception of what winning is, for example, from killing Westerners to having a Big Mac and Coke. Somewhat facetious, but a reality in a lot of the world. Time will show what results these decisions create, until then, we’re just left guessing. Or, in other words, the truth of an ethic is in how it is lived out.

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