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i

OXFORD LEGAL PHILOSOPHY

Series Editors:Timothy Endicott, John Gardner, and Leslie Green

Law and Morality at War

Law and Morality at War. First Edition. Adil Haque. © Adil Haque 2017. Published 2017 by Oxford
University Press
ii

OXFORD LEGAL PHILOSOPHY

Series editors:Timothy Endicott, John Gardner, and Leslie Green

Oxford Legal Philosophy publishes the best new work in philosophically-​oriented

legal theory. It commissions and solicits monographs in all branches of the sub-
ject, including works on philosophical issues in all areas of public and private law,
and in the national, transnational, and international realms; studies of the nature
of law, legal institutions, and legal reasoning; treatments of problems in political
morality as they bear on law; and explorations in the nature and development of
legal philosophy itself.The series represents diverse traditions of thought but always
with an emphasis on rigour and originality. It sets the standard in contemporary
jurisprudence.

ALSO AVAILABLE IN THE SERIES

Ignorance of Law Corrective Justice
A Philosophical Inquiry Ernest J. Weinrib
Douglas Husak Conscience and Conviction
Reason and Restitution The Case for Civil Disobedience
A Theory of Unjust Enrichment Kimberley Brownlee
Charlie Webb The Nature of Legislative Intent
Allowing for Exceptions Richard Ekins
A Theory of Defences and Why Law Matters
Defeasibility in Law Alon Harel
Luís Duarte d’Almeida
Imposing Risk
The Ends of Harm A Normative Framework
The Moral Foundations of John Oberdiek
Criminal Law
Victor Tadros
iii

Law and Morality

at War

Adil Ahmad Haque

Professor of Law and Judge Jon O. Newman Scholar
Rutgers Law School

1
iv

1
Great Clarendon Street, Oxford, ox2 6dp,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© A Haque 2017
The moral rights of the author have been asserted
First Edition published in 2017
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by licence or under terms agreed with the appropriate reprographics
rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Crown copyright material is reproduced under Class Licence
Number C01P0000148 with the permission of OPSI
and the Queen’s Printer for Scotland
Published in the United States of America by Oxford University Press
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Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
v

For my mother, Rehana, and my father, Aijaz

Law and Morality at War. First Edition. Adil Haque. © Adil Haque 2017. Published 2017 by Oxford
University Press
vii

Series Editors’ Preface

In this landmark in the philosophy of violence, Adil Haque resolves tensions
between the law and the morality of war. And he offers a new and discerning cri-
tique of the law, at points where the tension is irresoluble.
The field has been turned upside-down by revisionists who have challenged
the conventional idea that, in a conflict that has credentials as a war, combatants
on each side can rightly and lawfully kill each other even if (and this is the case in
every such conflict) it is unjust for at least one side to be engaged in the war. The
revisionists have said that it may be lawful for combatants to slaughter each other,
but it is not right.
Haque’s subject is the unbearable hostility that seems to result–a war–between
law and morality. His argument has crucial implications at every stage of the appar-
ent conflict. He argues that the law does not authorise immorality, as you may
think, because it does not actually authorize the use of violence in an unjust cause.
He argues that at some points, morality supports the law more fully than the revi-
sionists have thought (for example, he says that the general legal protection for
civilians gives effect to moral principles). And he argues that the law can and should
be reformed where the conflict with morality is genuine. In particular, he advocates
new and more stringent legal restraints on the use of force against combatants.
A war fought in accordance with the law of war is still a war. Haque takes an
appropriately realistic approach to the potential of the law: he counts it as a great
success–for legal thought and for legal practice–if ever the law has the result that an
innocent person is spared from slaughter or rape or torment or enslavement. And
even so, he sets aspirations for the law of war very high: where others have thought
that the law can only constrain, he thinks that the law should serve combatants who
are committed to acting justifiably. The result is a highly realistic anti-scepticism
about international law.
In this original account, reconciling the law and the morality of war becomes
a viable and an essential pursuit for philosophers, lawyers, combatants, and non-
combatants. We are very glad to be able to publish a major contribution to the
understanding and the critique of the law of war.
T.A.O. Endicott
J. Gardner
L. Green

Law and Morality at War. First Edition. Adil Haque. © Adil Haque 2017. Published 2017 by Oxford
University Press
ix

Author’s Preface
As a scholar, writing about the law and ethics of war, I do not expect to dramatically
alter the behavior of states or armed groups. Mostly, I hope to help move the needle.
Once in a long while, the needle moves.
On June 12, 2015, the United States Department of Defense issued its long-
awaited Law of War Manual.Ten days later, I began publishing a series of essays, criti-
cizing various aspects of the Manual, on the national security law blog Just Security.
I focused particular attention on the Manual’s alarming claim that collateral harm to
civilians forced to serve as involuntary human shields would not prohibit an attack
under the proportionality rule, no matter how great the expected harm or how small
the anticipated military advantage. A lengthy article followed in International Law
Studies, a journal published by the U.S. Naval War College. Other scholars and prac-
titioners offered their own criticisms of the Manual, on this point and many others.
On November 25, 2016, as this book was in proofs, Jennifer O’Connor, General
Counsel of the Department of Defense, announced that her office is revising the
Manual to clarify that the proportionality rule applies to civilians used as human
shields. As of this writing, the text of the revisions has not been released. For that
reason, among others, I have decided not to amend my discussion of this issue in
Chapter 9. At the very least, I hope that it will prove instructive to examine the
Manual’s original mistakes.
When I began writing this book, I believed that the United States generally com-
plies with international law as understood by the United States government. Accordingly,
if we correct the misunderstandings of the United States government, then compli-
ance with international law, properly understood, will follow.
As this book goes to press, my country’s future compliance with the rule of
law—international or domestic—seems very much in doubt.We are reminded that
decades of legal progress can be reversed. Laws can be changed, or ignored. Manuals
interpreting the law can be revised, only to be revised again.
What remains constant are the moral norms to which the law is, even at its best,
an imperfect guide. By revealing the moral foundations of the law, we may better
defend those laws that should not be changed, propose those changes to the law that
should be made, and better interpret those laws whose meaning determines who
lives and who dies. We may also encourage compliance with the law out of moral
conviction, quite apart from any expectation of reciprocity or fear of punishment.
Now, perhaps more than before, we must articulate and defend a vision of law
that reflects our moral values. This book is one contribution to that broader effort.
Adil Ahmad Haque
Brooklyn, New York, USA
November 30, 2016

Law and Morality at War. First Edition. Adil Haque. © Adil Haque 2017. Published 2017 by Oxford
University Press
xi

Acknowledgments
My sincere thanks to Milton Regan for organizing a wonderful workshop on the
manuscript at Georgetown University; to Yitzhak Benbaji, Janina Dill, David Luban,
Jeff McMahan, Jens Ohlin, and Jeremy Waldron for their insightful comments; and
to Jovana Davidovic, Ashley Deeks, Jesse Kirkpatrick, Marty Lederman, Hadassa
Noorda, Michael Robillard, and Michael Skerker for lively discussion.
Special thanks to Jeff McMahan for first igniting my interest in the contempo-
rary ethics of war and for later offering me the advice and encouragement that
enabled me to move between two worlds. Only Antony Duff has done as much to
help launch my academic career, in my other life as a criminal law theorist.
Special thanks also to Seth Lazar and Helen Frowe. Seth read and commented on
much of the manuscript in various forms. Although Seth and I differ on some fine
points, we remain fellow travelers. Helen and I disagree about a great deal, including
civilian immunity and the relative merits of coffee and wine. No one has offered
me greater encouragement or more opportunities to attempt what she calls “proper
philosophy.”
Thanks to Saba Bazargan, Vera Bergelson, Krister Bykvist, Lars Christie, Roger
Clark, Harlan Cohen, Evan Criddle, Margaret deGuzman, John Dehn, Kai
Draper, Charles Dunlap, Kimberly Ferzan, David Glazier, Stuart Green, Alexander
Greenawalt, Amos Guiora, Andrew Hayashi, Lisa Hecht, Kevin Heller, Alan Hyde,
Kyron Huigens, Col Richard Jackson, Maximo Langer, Adriaan Lanni, John
Leubsdorf, Dan Markel, Richard McAdams, Maj Richard Meyer, Mary Ellen
O’Connell, Brandon Paradise, Jonathan Parry, Massimo Renzo, Sam Rickless, Alice
Ristroph, Leila Sadat, Michael Schmitt, Mark Shulman, Daniel Statman, Bradley
Strawser, Beth Van Schaack, Horacio Spencer, Victor Tadros, François Tanguay-​
Renaud, Gerardo Vildostegui, Alec Walen, Lt Col Jeffery Walker, Mathew Waxman,
Alan Weiner, and Steve Woodside for stimulating conversations over the years.
Thanks also to audiences at the American Society of International Law, Benjamin
N. Cardozo School of Law, Carnegie Council for Ethics and International
Affairs, George Washington University Law School, New Voices in Legal Theory
Roundtable, Osgoode Hall Law School, Rutgers Law School, St John’s University
School of Law, Stockholm Centre for the Ethics of War and Peace, University
of California, San Diego, University of Pennsylvania Law School, Universidad
Torcuato di Tella, Washington University School of Law, William & Mary Law
School, and Yale Law School.
Thanks as well to Nicole Barna, Capt Edward Westfall, and Kenneth Wagner for
their excellent research assistance at various times.
Thanks most of all to Saumya Manohar, whose love and support has made writ-
ing this book, among other things, a joy.

Law and Morality at War. First Edition. Adil Haque. © Adil Haque 2017. Published 2017 by Oxford
University Press
1

1
Introduction

In the middle of Aleppo’s Souq al-​Madina, a tailor invited me to share a cup of tea
with him, as merchants had invited travelers for over five hundred years. His name
was Abdul Karim and he had served in the Syrian Army during its occupation of
Lebanon. While stationed there, he fell in love with a young woman. She was from
a different sect and their families forbade them to marry. Abdul Karim adored his
wife and children, but not a day went by in which he did not think of the woman
whom he had loved and lost. After chatting for an hour or so, I thanked Abdul
Karim for his company and for his tea, took his business card, and continued on
my way.
Seven years later, most of the Souq al-​Madina and much of Aleppo is rubble
and ash. Abdul Karim does not answer his phone. I fear that he and his family are
among the hundreds of thousands of men, women, and children who have been
killed by one side or another of the conflict that has torn apart two countries and
now threatens the surrounding region.
Human beings have long sought to constrain the conduct of war through legal
as well as moral norms. In the seventh century, the caliph Abu Bakr instructed his
army as follows:
Stop, O people, that I may give you ten rules for your guidance in the battlefield. Do not
commit treachery or deviate from the right path.You must not mutilate dead bodies. Neither
kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with
fire, especially those which are fruitful. Slay not any of the enemy’s flock, save for your food.
You are likely to pass by people who have devoted their lives to monastic services; leave
them alone.1

In issuing these rules, Abu Bakr claimed to follow the example of his son-​in-​
law and predecessor, Muḥammad ibn ‘Abd Allāh, who in turn claimed to follow
truths revealed to him by God. These rules, and others like them, later surfaced in

1 Malik ibn Anas (ed), Al-​Muwatta (circa 767 ce) (Diwan 4th edn 2015) Book 21, Number
21.3.10. See also UK Ministry of Defence, Law of Armed Conflict Manual (OUP 2005) 1.16
(“It is said, however, that the first systematic code of war was that of the Saracens, based on
the Koran, and principles of the law of armed conflict presented themselves in many differ-
ent parts of the world”).

Law and Morality at War. First Edition. Adil Haque. © Adil Haque 2017. Published 2017 by Oxford
University Press
2

2 Introduction

European codes of chivalry, in the just war tradition, in customary international law,
and finally in the Hague and Geneva Conventions.
The contemporary international law of war both constrains and protects every
person who finds himself or herself on one side of a conflict or trapped between
opposing sides of a conflict. Similarly, the modern, secular ethics of war addresses all
parties to armed conflict and all participants in hostilities.
It is natural to view this legal and moral project with skepticism. Each year,
thousands of men and women, girls and boys, are killed, maimed, and driven from
their homes by opposing combatants. One objection to the project is that much of
this violence flouts applicable moral and legal rules. This fact can make the project
seem irrelevant. Another objection to the project is that much of this violence sat-
isfies applicable moral and legal rules.This fact can make the project seem perverse.
It seems likely that no war has ever been fought in full compliance with the
law of war. It seems certain that even a war fought in full compliance with the
law would not be fully just. War can never be fully just because war inevitably
infringes the human rights of civilians and inflicts undeserved suffering on com-
batants. At best, the resort to war can be morally justified only as the lesser of two
great evils, perhaps when the only alternative is surrender to aggression or geno-
cide. Similarly, the conduct of war can be morally justified only if it targets indi-
viduals who have forfeited or compromised their right not to be harmed while
collaterally harming the innocent only to prevent substantially greater harm to
others.
It is unfortunate that the moral theory of war is so often referred to as “just war
theory.”This label suggests that just wars are real things that could be the subjects of
a theory—​like politics, decisions, or music. In my view, moral theory should aim to
identify and analyze the most serious injustices perpetrated in war. Many of these
injustices—​such as torture, rape, and enslavement—​require little theoretical illumi-
nation. In contrast, launching indiscriminate attacks and inflicting disproportion-
ate civilian losses are clearly unjust but they are not, one might say, unjust clearly.
What makes an attack “indiscriminate”? What makes civilian losses “disproportion-
ate”? These are the sorts of questions that the moral theory of war should address.
Perhaps a better name for the field would be “unjust war theory.”
Law can never make war just. However, law can make war less unjust than it
would be otherwise. Law can prohibit the intentional, indiscriminate, unnecessary,
and disproportionate killing of civilians, almost all of whom, I will argue, retain
their fundamental moral rights. Law can also, I will argue, prohibit the unneces-
sary killing of opposing combatants. Combatants who try to follow such laws may
still inflict wrongful harm—​at the very least by mistake—​but they will inflict less
wrongful harm than they would without the law to guide them. Individuals pro-
tected by such laws may still suffer infringements of their fundamental rights but
these infringements will be less morally arbitrary than they would be without these
laws.
3

Introduction 3

Unfortunately, the law governing the conduct of hostilities—​the jus in bello—​

cannot prohibit all killing of civilians or combatants in pursuit of an unjust cause,
though most such killing violates their fundamental moral rights. Fortunately, this
prohibition resides, at least to an extent, in the law governing the use of armed
force between states—​the jus ad bellum or jus contra bellum—​with which the law
governing the conduct of hostilities shares a division of moral labor. If each body
of law does its job, then those combatants who perfectly conform to both bodies
of law will avoid wrongful killing. The majority of combatants—​who imperfectly
conform to one body or both bodies of law—​will commit less wrongful killings
than they would otherwise.
While no body of law receives full compliance, partial compliance with the
law of war is vastly preferable to there being no law of war with which to
comply. The law of war is respected by some, distorted by others, and ignored
by many. If the law is shown to rest on a strong moral foundation, then perhaps
the law will be more often respected, less often distorted, and harder to ignore.
In particular, if it can be shown that the law provides combatants with sound
moral guidance, then combatants may be more willing to obey the law even
when their adversaries do not. The practical efficacy of the law would then rest
on humanity rather than reciprocity.
The law of war is often presented in terms of a balance between humanitar-
ian considerations and military considerations, implying that the two are opposing
forces locked in perpetual conflict. In fact, a law of war that neglects humanitarian
considerations would often impair rather than enhance military effectiveness. If the
law of war loses its moral credibility, then combatants will not trust that they can
obey lawful orders in good conscience. They will hesitate, question, and dissent,
looking elsewhere for the normative guidance that law ought to provide. Instead
of relying on the law to strike a reasonable balance between competing considera-
tions, combatants will have no choice but to strike their own.
The law of war may influence behavior by eliciting compliance, mere con-
formity, or near-​conformity. Some seek, in good faith, to comply with the law for
reasons given or endorsed by the law. Others seek merely to conform to the law
for reasons independent of the law.2 Still others seek, in bad faith, not to violate
the law so flagrantly that any legal defense they might offer would be implausible
on its face. In my view, every innocent person spared rather than killed due to the
influence of law represents a resounding success.
This legal and moral project sometimes involves defending established legal
principles—​such as civilian immunity—​from attempts to undermine or corrupt
their moral foundations. At other times, this project involves developing new legal
principles—​such as restraints on the use of force against opposing combatants—​to

2 For the distinction between compliance and conformity, see Joseph Raz, Practical Reason
and Norms (OUP 1999) 178–​9.
4

4 Introduction

legally recognize moral wrongs long ignored. Most often, this project involves
interpreting ambiguous legal principles—​such as proportionality or precautions in
attack—​in their morally best light, using moral concepts, principles, and arguments
to give the law more determinate content, combatants clearer guidance, and civil-
ians more robust protection. This book is my contribution to this ongoing legal
and moral project.

Aim and Scope

The laws are not silent in war. But what do they say? What should they say? What
is the moral function of the law of war? Should the law protect civilians who do
not fight but help those who do? Should the law protect soldiers who perform
noncombat functions or who may be safely captured? How certain should a sol-
dier be that a person is a combatant rather than a civilian before using lethal force?
Which weapons are so inaccurate as to be intolerably indiscriminate? What risks
should soldiers take on themselves to avoid harming civilians? When is “collateral
damage” to civilians disproportionate? Should civilians lose their rights when they
serve—​voluntarily or involuntarily—​as human shields? Finally, when should killing
civilians constitute a war crime?
These questions have always been with us, but they may have seemed less
pressing during an era of regular armed conflicts between states, often con-
ducted at sea, in the air, or on distant battlefields. Unfortunately, more than
ever before, today’s combatants fight where civilians live. These questions take
on new urgency in our own era of irregular armed conflicts between states and
organized armed groups, in which the latter often wear no uniforms, conceal
their weapons, and operate among the civilian population. These changes in
the nature of warfare have exposed gaps and ambiguities in the law of war that
leave civilians without adequate legal protection and leave combatants without
adequate legal guidance.
These are the questions that this book seeks to answer, drawing on and contribut-
ing to both international law and moral philosophy in equal measure. In Chapter 2,
I argue that the law of war should be defended, interpreted, and developed so as to
serve combatants by providing them with moral guidance, thereby helping them to
conform as closely as possible to their moral obligations. I defend a broad principle
of civilian immunity in Chapter 3, while proposing new restraints on the use of
force against combatants in Chapter 4. I explore a new account of epistemic moral
permissibility in order to develop new approaches to distinguishing civilians from
combatants in Chapter 5, and to indiscriminate attacks in Chapter 6. I appeal to
the moral asymmetry between doing harm and allowing harm in order to advance
a new understanding of precautions in attack in Chapter 7, and a new standard of
proportionality in Chapter 8. Resisting some disturbing trends, I argue in Chapter 9
that civilians used as human shields generally retain their moral and legal rights.
5

Aim and Scope 5

Finally, in Chapter 10, I argue that the Rome Statute of the International Criminal
Court fails to recognize and punish serious violations of the law of armed conflict
and must be amended.
This book examines those legal principles that promise “[t]‌he civilian population
and individual civilians … general protection against dangers arising from military
operations.”3 These legal principles—​civilian immunity, distinction, discrimination,
precautions, and proportionality—​constitute only part of the law of war. I will say
little about the jus ad bellum and nothing about the law of occupation. Even within
the jus in bello, I will say little about the treatment of prisoners, the sick, and the
wounded; the legal status of medical, religious, and civil defense personnel; prohibi-
tions on specific weapons; or damage to civilian property, cultural property, and the
environment. Instead, I will focus my attention on the law of targeting and attack
that protects individual human beings from death and serious physical injury. My
aim is not to touch on every part of the law of war but to focus on what I consider
its moral core.
Each chapter contains both legal analysis and moral argument. The relationship
between the two varies somewhat from chapter to chapter. In some chapters, I offer
moral arguments in defense of existing law. In others, I offer moral arguments for
reform of existing law. In most chapters, I offer moral arguments for interpreting exist-
ing law in its morally best light.
Over the last two decades, philosophical enquiry into the ethics of war has
reached an unprecedented level of rigor and sophistication. In my view, it is high
time that we integrate the concepts, methods, and insights of moral theory into
contemporary legal discourse.
I hope that this book will contribute to both international law and moral phi-
losophy while perhaps bringing these two fields closer together. If a few interna-
tional lawyers come to see moral philosophy as a valuable resource, while a few
moral philosophers come to see international law as an exciting opportunity to put
their theoretical skills to practical use, then writing this book will have been time
well spent.
Accordingly, I hope that this book will prove both accessible and interesting to
readers from a variety of disciplines, provided that they are willing to familiarize
themselves with a few legal terms and moral concepts. Most of these terms and
concepts are used in ordinary language, though often imprecisely. Admittedly, a few
are rather esoteric, but I hope will earn their keep. I introduce many of them here
so that readers will not feel ambushed when I reintroduce them in later chapters.
Readers should feel no need to memorize each term or concept now, but instead
should refer back to the following sections as needed.

3 Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I) (adopted June 8, 1977,
entered into force December 7, 1978) 1125 UNTS 3, art 51(1).
6

6 Introduction

Legal Terms
I use the labels “law of war,” “law of armed conflict” (or LOAC), and “international
humanitarian law” (or IHL) interchangeably. The term “war” may seem both nar-
row and antiquated, suggesting either formal declarations of war by opposing states
or the large-​scale use of military force by opposing states. Nevertheless, the term
“war” remains ubiquitous in ordinary language, in state practice, in international
law, and in moral philosophy.4 For its part, “law of armed conflict” underscores the
scope of the relevant legal principles, which regulate any use of significant military
force between states as well as intense armed violence between states and organized
armed groups or between such groups. In contrast, “international humanitarian
law” underscores the purpose of the relevant legal principles, which is to protect
human beings in armed conflict. Since none of these labels appear obviously supe-
rior to the others, I will use each as seems appropriate.
I will use the term “combatant” to refer to members of the armed forces of
parties to international armed conflicts as well as to members of both state armed
forces and organized armed groups representing parties to non-​international armed
conflicts.5 Civilians who take a direct part in hostilities are not, strictly speaking,
combatants. This legal distinction is highly relevant to lawful detention and crimi-
nal prosecution, but it is largely irrelevant to lawful targeting, attack, and collateral
harm. Accordingly, unless otherwise indicated, my moral and legal claims regard-
ing combatants apply also to civilians directly participating in hostilities, while my
moral and legal claims regarding civilians apply only to civilians not directly partici-
pating in hostilities. I sometimes refer to members of state armed forces as “soldiers”
irrespective of their service branch.
I refer to harm inflicted on individuals who are not the object of an attack either
as “collateral” harm or as “incidental” harm. Both terms have unfortunate connota-
tions in ordinary language but are unavoidable in legal discourse and military practice.
I typically use “harm” or “losses” to refer to death and serious physical injury.
In addition, my legal and moral claims regarding killing extend, with appropriate
modifications, to nonlethal injury as well. I make a few comments regarding dam-
age to civilian property in Chapter 8.
I often use “attacking forces” or “attackers” to refer to combatants planning or
carrying out acts of violence and often use “defending forces” or “defenders” to

4 International law continues to refer to “war crimes” as well as “prisoners of war,” while
philosophers continue to refer to “just war theory,” “war ethics,” and “the deep morality of
war.” On some views, the law of war includes the law governing the resort to military force
as well as the law of neutrality, while the law of armed conflict and international humanitar-
ian law include only the law governing the conduct of hostilities. See, eg, US Department of
Defense, Law of War Manual (2015) 1.3.1.2.
5 Some authors refer to the latter as “fighters,” since they are not entitled to combatant
immunity from criminal prosecution or to treatment as prisoners of war. Respectfully, I find
this proliferation of terms unnecessary.
7

Moral Concepts 7

refer to combatants who are the targets of those acts of violence.These terms apply
strictly at the tactical and operational levels of warfare. In any given engagement or
campaign, forces fighting in national self-​defense may be on the attack while forces
participating in a war of aggression may be on the defensive. These terms simply
identify the party to whom relevant legal principles apply at any given moment.
Finally, unless otherwise noted, the legal norms that I will discuss apply in inter-
national armed conflicts between states as well as in non-​international conflicts
between states and organized armed groups or between such groups. Many of these
norms have been codified in conventional (treaty) law, most notably in the Additional
Protocols to the Geneva Conventions. All of them reflect customary international
law and therefore apply to all states independently of their treaty obligations.

Moral Concepts
On any moral view, you have reasons not to kill an innocent person that are
grounded in her interests in living. In addition, you owe her a duty not to kill her
that is grounded in her right against you that you not kill her. Her right that you not
kill her both protects her interests in living and reflects her moral status.Your cor-
responding duty not to kill her is owed to her as an individual and gives you reasons
not to kill her that are distinct from your reasons to ensure that as few innocent
people die as possible. Since the duties I discuss are grounded on rights, all of my
moral claims using one concept may be reframed using the other.
Rights are infringed when we act as someone has a right that we not act, for exam-
ple, when we harm an innocent person. Rights are violated when they are unjustifiably
infringed, for example, when we harm an innocent person for a trivial, insufficient, or
wicked reason. Rights may be overridden—​and therefore infringed but not violated—​
when the moral reasons in favor of infringing them outweigh the moral reasons
against infringing them, for example, when we collaterally harm an innocent person
as an unintended side effect of preventing far greater harm to others.
Any threat to infringe a right is an unjust threat. In contrast, only a threat to vio-
late a right is an unjustified threat. It follows that unjust threats may be justified when
the right that they threaten to infringe is overridden, to use the same example,
when we threaten to infringe the rights of an innocent person as a side effect of
preventing far greater harm to others.
An innocent person retains her basic rights. A person forfeits her rights when she
loses them through her own voluntary conduct, for example, by culpably attempt-
ing to kill an innocent person.6 A person who forfeits a right makes herself morally
liable to be treated as she previously had a right not to be treated, for example, to

6 Forfeiture of a right may be intentional or unintentional. In contrast, a person waives her

rights only when she intentionally loses them through her voluntary conduct.
8

8 Introduction

be (defensively) restrained, harmed, or even killed. It follows that treating someone

as she has made herself morally liable to be treated does not infringe her rights and
is not unjust.
Moral reasons are reasons for action, while epistemic reasons are reasons for belief.
A conclusive reason confronts no opposing reasons. A decisive reason outweighs or
otherwise defeats opposing reasons. A strongly decisive reason far outweighs opposing
reasons. An undefeated reason is neither outweighed nor otherwise defeated.
An act is objectively permissible if and only if it is permissible given all the morally
relevant facts. An act is subjectively permissible if and only if it would be objectively
permissible were the agent’s beliefs about the morally relevant facts true. An act is
epistemically permissible only if it would be objectively permissible were the morally
relevant facts as the available evidence suggests.7 I offer a more detailed account of
epistemic permissibility in Chapter 5.
While permissibility and impermissibility are binary, wrongfulness comes in
degrees.8 In one sense—​call it the pro tanto sense—​the stronger the moral reasons
to refrain from an act, the more wrongful it is. In this sense, killing five innocent
people is worse than killing one innocent person. In a different sense—​call it the
all-​things-​considered sense—​the more decisively the reasons to refrain from the act
outweigh the reasons to perform that act, the more wrongful it is. In this sense,
killing five innocent people to save one innocent person is worse than killing five
innocent people to save two innocent people. When I refer to the wrongfulness of
an act, the context will indicate which sense I intend.
Similarly, one act is morally worse than another in the pro tanto sense when the
moral reasons to refrain from the former are stronger than the moral reasons to
refrain from the latter. In this sense, one act is morally worse than another when the
former is harder to justify than the other, as it would take stronger opposing reasons
to render the former permissible than to render the latter permissible. One act is
morally worse than another in the all-​things-​considered sense when the final bal-
ance of moral reasons more strongly disfavors the former than the latter.When I say
that one act is worse than another, the context will indicate which sense I intend.
Finally, just combatants are combatants whose armed forces fight for a just cause,
while unjust combatants are combatants whose armed forces fight for an unjust cause.
These designations refer to the strategic level of warfare at which the resort to
military force is permitted or prohibited by the jus ad bellum. In particular tacti-
cal engagements, individual just combatants may pose unjust threats to innocent
people while individual unjust combatants may pose justified threats to such just
combatants. Almost all wars are morally heterogeneous to one extent or another.9

7 These distinctions correspond to the distinctions between fact-​relative, belief-​relative,

and evidence-​relative wrongfulness in Derek Parfit, On What Matters, vol 1 (OUP 2011) 151.
8 See Seth Lazar, Sparing Civilians (OUP 2016) 5.
9 See Saba Bazargan, “Morally Heterogeneous Wars” (2013) 41 Philosophia 959.
9

War and Defensive Killing 9

War and Defensive Killing

Every moral argument begins somewhere. The moral arguments in this book
begin with three claims. First, the moral norms governing violence in war are
continuous with the moral norms governing violence outside of war. Second, the
moral norms governing violence in war regulate not only the consequences of
our actions but also their causal and intentional structure. Finally, the moral norms
governing violence in war generally reflect our moral status as human beings and
only interstitially reflect our special relationships. We may refer to these claims as
reductive individualism, nonconsequentialism, and cosmopolitanism respectively. Since
each of these claims has been admirably defended elsewhere by others, I will only
present them in what I hope will prove a morally attractive light.10
On my view, almost all morally permissible killing in war is either defensive
killing or a side effect of defensive killing. In general, individuals are morally liable
to killing in war only if they unjustly threaten to kill or seriously injure innocent
people or are sufficiently responsible for similar unjust threats posed by others.
Relatedly, innocent people may be justifiably killed in war only if their deaths are
an unavoidable side effect of defending other innocent people from such unjust
threats. On my view, the law of war should help combatants target only those mor-
ally liable to defensive killing and collaterally harm the innocent only in defense of
other innocent people.
Importantly, this approach does not entail that the law of war should track
national criminal law rules governing self-​defense and defense of others or track
international human rights law rules governing the use of force by law enforce-
ment. In ordinary life, it is hardly ever necessary to kill someone who poses no
immediate threat or from whom one could safely retreat. In contrast, combat-
ants who currently pose no threat often pose serious threats in the near future.
Similarly, safely retreating from opposing forces in one engagement often means
facing greater danger in the next engagement.
Nor does this approach entail that the law of war should track abstract moral
principles without regard to the epistemic, pragmatic, cognitive, and emotional
constraints under which combatants fight. On the contrary, the law of war should
address combatants roughly as they are and in the circumstances in which they typ-
ically find themselves. Similarly, rules of engagement should provide simple guid-
ance that combatants can understand, internalize, and apply under fire.
Finally, this approach does not deny that war may be a continuation of politics
by other means. Instead, this approach emphasizes that war is a continuation of

10 On reductive individualism, see Jeff McMahan, Killing in War (OUP 2009); Helen
Frowe, Defensive Killing (OUP 2014). On nonconsequentialism, see FM Kamm, Intricate
Ethics: Rights, Responsibility, and Permissible Harm (OUP 2007). On cosmopolitanism, see
Cécile Fabre, Cosmopolitan War (OUP 2012).
10

10 Introduction

politics by means of violence. If a state or non-​state actor uses or threatens violence

to achieve its political aims, then it may be permissible to use violence to stop or
prevent such violence. In contrast, generally it is not permissible to use violence
merely to prevent an adversary from achieving political aims—​assuming these aims
are not inherently violent—​or merely to achieve one’s own political aims. There
may be cases in which it is permissible to resort to lethal force to protect or secure
the political rights of many individuals. However, even in such cases, once war
begins the rules governing the conduct of hostilities will be the rules governing
defensive killing.11

Moral Asymmetries
On any nonconsequentialist view of ethics, the consequences of our actions always
matter, but how we bring those consequences about often matters more. On most
such views, intentionally harming innocent people is morally much worse (that
is, much harder to justify) than unintentionally harming innocent people, which
in turn is substantially morally worse (that is, substantially harder to justify) than
allowing harm to innocent people. On such views, we may not unintentionally
harm innocent people except as an unavoidable side effect of preventing substan-
tially greater harm to other innocent people. In contrast, we may not intentionally
harm innocent people except as a necessary means of preventing far greater harm
to other innocent people.
International law reflects the extreme wrongfulness of intentionally harming
innocent people in its categorical prohibition on targeting civilians. In contrast,
international law reflects the substantial but lesser wrongfulness of unintention-
ally harming innocent people in its conditional prohibition on launching attacks
that may be expected to cause harm to civilians that would be disproportionate or
excessive in relation to the anticipated military advantage.
The substantial moral asymmetry between doing harm and allowing harm
may be understood in a number of ways. Doing harm typically interferes with
something else to which the person harmed has a right—​typically her physical
integrity—​while allowing harm typically does not.12 In addition, doing harm to
someone typically leaves her worse off than she would have been in your absence,
while allowing harm to someone typically fails to make her better off than she
would have been in your absence. These considerations combine to make it sub-
stantially morally worse to harm an innocent person, even unintentionally, than to
allow harm to another innocent person. For example, it would be wrong to protect

11 Conditional threats of violence also introduce some complications. See generally

Cécile Fabre and Seth Lazar (eds), The Morality of Defensive War (OUP 2014).
12 See, eg, Kai Draper, War and Individual Rights (OUP 2016) 53–​6.
11

Moral Asymmetries 11

one innocent person from being killed if, as a foreseeable side effect, you will kill
another innocent person. Though the consequences are equally bad, one way of
bringing about those consequences would be worse than the other.
The compound moral asymmetry between intentionally doing harm and fore-
seeably allowing harm also may be understood in a number of ways. In many
cases, intentionally harming someone uses her as a means of achieving aims that
you could not achieve in her absence. Such opportunistic, manipulative, or exploitative
harming wrongfully involves her in your plans without her consent and wrongfully
uses her to benefit others at her expense.13 Paradigmatically, it would be wrong
to intentionally kill an innocent, healthy person in order to distribute her organs
to five deserving patients who will die without them. Though the consequences
would be better, this way of bringing them about would be worse.
International law recognizes the special wrongfulness of opportunistically harm-
ing innocent people by categorically prohibiting “[a]‌cts or threats of violence the
primary purpose of which is to spread terror among the civilian population.”14
International law also recognizes the special wrongfulness of opportunistically
using innocent people—​endangering them though not directly harming them—​by
forbidding combatants from using civilians as human shields.
In rare cases, the presence of an innocent person can make you worse off than
you would be in her absence. For example, her presence may physically prevent
you from achieving your aims. Intentionally harming her may remove the obstacle
that she presents. Such eliminative harming would not use her as a means of achiev-
ing your aims but would still harm her, or affect her in a way that harms her, as a
means of achieving your aims. Eliminative harming remains a form of instrumental
harming that wrongfully involves the victim in your plans without her consent as a
means of preventing harm to others at her expense. These considerations typically
make eliminative harming harder to justify than collateral harming but not as hard
to justify as opportunistic harming.15
To illustrate these moral distinctions in wartime contexts, compare the following
cases:
Flush Out: A military sniper deploys to kill an opposing combatant.The com-
batant is in a house, so the sniper has no clear shot. Just then, a passing civilian
unwittingly walks by the front door. If the sniper shoots the civilian, then the
combatant will run out to try to help the civilian, allowing the sniper to kill
the combatant.

13 See, eg, Warren S Quinn, “Actions, Intentions, and Consequences: The Doctrine
of Double Effect” (1989) 18 Philosophy & Public Affairs 334; Victor Tadros, “Wrongful
Intentions without Closeness” (2015) 43 Philosophy & Public Affairs 52.
14 Protocol I art 51(2); International Committee of the Red Cross, Customary International
Humanitarian Law, vol 1 (CUP 2009) 8.
15 See Quinn, “Actions, Intentions, and Consequences”; Tadros “Wrongful Intentions.”
In some cases, one person intentionally kills another person as an end in itself, neither as a
12

12 Introduction

Clear Shot: A military sniper has a clear shot at an opposing combatant. Just as
the combatant is about to leave, a passing civilian unwittingly walks directly in
the line of fire. If the sniper shoots the civilian, then the civilian will drop to
the ground, giving the sniper a clear shot to kill the combatant.
Drone Strike: A drone pilot tracks an opposing combatant to an otherwise
empty house and prepares to launch a missile strike. Just then, a passing civilian
unwittingly stops by the side of the house to rest in the shade. The pilot can
launch a missile at the house, killing the combatant and wounding the civilian.
Holding constant the harm to the civilian and the military advantage of killing
the combatant, it seems somewhat worse to harm the civilian in Flush Out than in
Clear Shot and much worse to harm the civilian in Clear Shot than in Drone Strike.
In Flush Out, the sniper would opportunistically harm the civilian as a means of
achieving an aim that the sniper could not achieve in the civilian’s absence. In
Clear Shot, the sniper would eliminatively harm the civilian as a means of achiev-
ing an aim that the sniper could achieve in the civilian’s absence. Finally, in Drone
Strike, the pilot would collaterally harm the civilian as a foreseen but unintended
side effect of achieving an aim that the pilot could achieve in the civilian’s absence.
Importantly, in some cases, it is possible to opportunistically harm someone
without deliberately targeting her or directly attacking her. Consider the following
scenario:
Collateral Terror: An attack on a munitions factory will also kill some innocent
civilians nearby. The damage to the factory will confer little military advan-
tage; there are many other munitions factories and this factory will be quickly
repaired. This military advantage alone would not justify the civilian deaths,
leaving the attack disproportionate. However, the deaths of the civilians will
terrorize and demoralize the rest of the civilian population.
Suppose that attackers strike the factory not in order to kill the civilians but only
because or on the condition that the civilians will be killed. In other words, the attack-
ers would not attack the civilians in the factory’s absence but neither would they
attack the factory in the civilians’ absence. In my view, the civilians are still killed
opportunistically, taking advantage of their presence to obtain benefits that could
not be obtained in their absence.16
More broadly, when we consider the permissibility of an act that infringes the
rights of an innocent person—​either intentionally or unintentionally—​generally
we should exclude the downstream consequences of that infringement from

means of producing benefits nor as a means of preventing harms. Obviously, such wanton
killings are necessarily unjustified.
16 For a different view, see Kamm, Intricate Ethics. The scenario that I describe is adapted
from one of Kamm’s. I return to this issue in Chapter 9.
13

Fellow Soldiers, Fellow Citizens, and Foreign Civilians 13

justifying that infringement.17 If such consequences could justify such infringe-

ments, then morality itself would regard the infringement of rights as an appropri-
ate causal means of producing good consequences and as an opportunity to be
exploited for the greater good.The exclusion of such consequences—​at least below
some significant threshold—​partly constitutes our moral status as presumptively
inviolable beings, generally entitled to decide for ourselves which ends we will
serve and which sacrifices we will make. It is wrong to kill in order to bring about
such consequences, or on the condition that killing will bring about such conse-
quences, because in either case we fail to act on morally valid grounds.

Fellow Soldiers, Fellow Citizens,

and Foreign Civilians
In international armed conflict, combatants must often choose between launching
attacks that collaterally harm foreign civilians or refraining from such attacks and
thereby—​sooner or later—​allowing opposing combatants to kill their comrades
or their own civilians. Some scholars argue that, in such cases, combatants have
special duties to protect their comrades and fellow citizens. These special duties may
be associative obligations based on shared nationality or role–​responsibilities vol-
untarily undertaken. Importantly, these scholars argue that the special duties of
combatants offset or override the general moral asymmetry between doing harm
and allowing harm. On these views, special duties make it morally permissible for
combatants to collaterally harm foreign civilians rather than allow comparable or
even lesser harm from befalling their comrades or their civilians.18
I reject all such views. No doubt, combatants generally bear special duties to
protect their comrades and civilians from harm.These duties may be very stringent.
Indeed, combatants may be morally required to risk or sacrifice their own lives to
discharge their special duties. However, it does not follow that combatants are mor-
ally permitted to risk or sacrifice the lives of foreign civilians simply to discharge
their own special duties.19 In general, I may not force others to bear the costs of dis-
charging my duties. Since these are my duties, the costs of discharging them should

17 See Adil Ahmad Haque, “Torture, Terror, and the Inversion of Moral Principle” (2007)
10 New Criminal Law Review 613; Howard Nye, “Objective Double Effect and the
Avoidance of Narcissism,” in Mark Timmons (ed), Oxford Studies in Normative Ethics, vol 3
(2013) 280 (“All else held equal, the fact that an act or omission will result in benefits for
some individuals at the expense of other individuals weakens the extent to which those
benefits count in favour of the act or omission”).
18 See, eg, Thomas Hurka, “Proportionality in the Morality of War” (2005) 33 Philosophy
& Public Affairs 34, 63–​4.
19 Seth Lazar helpfully distinguishes between the stringency of special duties, which
determines “the costs they can justify imposing on the duty-​bearer” and the gravity of
14

14 Introduction

fall on me alone. To force others to bear these costs is tantamount to forcing others
to discharge my duties on my behalf. It follows that combatants are permitted to
kill foreign civilians only according to the general morality of doing and allowing
harm, unaffected by their special duties to their comrades and civilians.
Here is another way of seeing that special duties cannot affect the moral permis-
sibility of killing. Suppose that an innocent stranger is about to be harmed and asks
me to defend her. She retains her right to use force in self-​defense and may transfer
that right to me to exercise on her behalf. However, my general duty to defend her
is not very stringent. I may decline to defend her if doing so would place me at
grave personal risk. Now suppose that an innocent civilian is about to be harmed
by a foreign combatant and asks a soldier in her state’s armed forces to defend her.
The soldier’s special duty to defend her may be very stringent, such that the soldier
must defend her even at grave personal risk. But notice that what the soldier is
required to do—​the content of the special duty—​is to exercise the civilian’s right
of self-​defense on her behalf. It follows that the soldier may not do for the civilian
what the civilian may not do for herself. If the civilian may not inflict a greater
harm on a foreign civilian as a side effect of defending herself from a lesser harm,
then the soldier may not do so on her behalf. After all, no one can transfer a right
that she does not possess.20
The opposing view, that special relationships significantly affect the morality of
killing and letting die, may seem attractive when we imagine our loved ones in
peril. When considering such cases, we may feel that it would be permissible for
us to kill an innocent bystander in order to save our loved one, if not as a means
then perhaps as a side effect.21 However, when we imagine ourselves in peril and
our loved ones in a position to save us, it seems clearly wrong to ask our loved ones
to kill an innocent bystander to save us, either as a means or as a side effect. Yet it
seems hard to believe that others may do for us what we may not ask them to do for
us. Put another way, the extra weight that we may place on each other’s lives, due
to our special relationships, should not exceed the extra weight that we may each
place on our own life. Accordingly, in my view, our special duties to protect others
do not give us special rights to harm others.

special duties, which determines their “relative weight when they clash with other moral
reasons” (“Associative Duties and the Ethics of Killing in War” (2013) 1 Journal of Practical
Ethics 3, 14). On my view, the special duties of soldiers are very stringent but not suffi-
ciently grave to justify killing foreign civilians when doing so would otherwise be morally
impermissible.
20 See Jeff McMahan, “The Just Distribution of Harm Between Combatants and
Noncombatants” (2010) 38 Philosophy & Public Affairs 342, 366. See also David
Lefkowitz, “Partiality and Weighing Harm to Non-​Combatants” (2009) 6 Journal of Moral
Philosophy 298.
21 McMahan, “Just Distribution,” 377. McMahan notes that such cases are largely irrel-
evant to the case of war, “since the relations between just combatants and just civilians are in
general far less morally significant than the relation between a parent and child.”
15

The Road Ahead 15

The Road Ahead

In Chapter 2, I argue that the central debate in contemporary just war the-
ory—​between conventionalists led by Michael Walzer and revisionists led by Jeff
McMahan—​rests, in part, on a mistake. Conventionalists argue that both the law of
war and the morality of war grant opposing combatants symmetrical permissions to
fight irrespective of the cause for which they fight. Revisionists argue that combat-
ants have no moral permission to fight for an unjust cause and conclude that the
law of war sharply diverges from the deep morality of war. Indeed, many revisionists
argue that the law of war should not even aim to track the deep morality of war
but instead should aim to reduce wrongful suffering in war to the greatest extent
practically possible—​what I call the humanitarian view.
In contrast, I argue that the law of war does not, in fact, permit combatants to
fight for an unjust cause. The legal equality of combatants does not consist in sym-
metrical legal permissions to fight but instead in symmetrical legal prohibitions on
certain means of fighting as well as symmetrical legal immunities from criminal
prosecution for acts that are not prohibited by the law of war. On this view, the
law of war applies alongside other legal and moral norms, including human rights
law, rather than displacing them. Accordingly, conventionalists who seek to defend
the war convention need not defend moral permissions to fight for an unjust cause.
At the same time, revisionists who reject such moral permissions need not resign
themselves to a sharp divergence between law and morality.
Finally, I reject the humanitarian view and defend the service view, according to
which the law of war should aim to help combatants better conform to their moral
obligations. The law of war achieves its aim to the extent that just combatants
are more likely to avoid acting wrongfully if they obey the law and unjust com-
batants will act less wrongfully if they obey the law. We should defend, interpret,
and develop the law of war by reference to the service view. Though apparently
heterodox, the service view gives moral content to the orthodox view that we
should purposively interpret the law of war by balancing humanitarian and military
considerations.
In Chapter 3, I offer a moral defense of the legal principle of civilian immunity.
Civilians enjoy general legal protection from intentional, unnecessary, and dispro-
portionate harm unless and for such time as they take a direct part in hostilities.
A number of revisionists, particularly Jeff McMahan and Helen Frowe, reject the
deep moral basis of civilian immunity, arguing that many civilians who contribute
to an unjust war effort are morally liable to defensive killing. I directly address
their arguments in an Appendix at the end of the book. In Chapter 3, I present my
affirmative moral argument that civilians generally are morally liable to defensive
killing only if they pose unjust threats directly, jointly with others, or indirectly
through others they control. Suitably interpreted, the legal standard of direct partic-
ipation in hostilities closely tracks deep moral principles. Just combatants who obey
16

16 Introduction

the law will avoid wrongful killing while unjust combatants will kill less wrongfully
if they obey the law than if they break the law.
In Chapter 4, I argue that the moral status of combatants is more complex than
is generally believed, and that we should reform the law to reflect this complex-
ity. While unjust combatants who perform combat functions are morally liable to
defensive killing, unjust combatants who perform noncombat functions are not. At
the same time, I argue that it is much less wrongful to kill unjust combatants who
perform noncombat functions than to kill civilians. It follows that one need not
presume that unjust combatants perform noncombat functions in case of doubt
or take risky precautions to avoid mistakenly killing such combatants. In addition,
collateral harm to such combatants will seldom render acts of war—​or the resort
to war—​disproportionate. Nevertheless, it is epistemically impermissible to target
unjust combatants if one has decisive reason to believe that they perform non-
combat functions. International law should therefore prohibit intentionally killing
combatants “if it becomes apparent” that they perform noncombat functions. Such
a prohibition will help just combatants avoid wrongful killing and will help unjust
combatants avoid particularly wrongful killings. Human rights law may also pro-
hibit such killings.
In addition, it is objectively impermissible to unnecessarily kill opposing com-
batants whom one could safely capture. With some regret, I conclude that recent
arguments that the law of war already prohibits such unnecessary killing do not
succeed. Such combatants are not hors de combat and the principle of humanity does
not directly obligate individuals to refrain from such killings. Instead, I argue that
the principle of humanity legally obligates states to instruct their armed forces to
refrain from such killings. Over time, convergent state practice and opinion will
generate specific rules of customary international law, binding on individuals, that
prohibit such killings.
In Chapter 5, I argue that the principle of distinction requires more than not
intentionally targeting known civilians. In addition, attackers must not intentionally
target a person unless they are sufficiently certain that the individual is a combat-
ant and not a civilian. Unfortunately, international law does not identify the level
of certainty required to lawfully attack a person. Some experts propose a balancing
approach, according to which the required level of certainty varies with the relative
risks of mistakenly killing a civilian or mistakenly sparing an opposing combatant.
Unfortunately, the balancing approach quickly generates intolerable results. Instead,
I argue that it is epistemically permissible to target a person only if your epistemic
reasons to believe that she is liable to targeting are stronger than your epistemic
reasons to believe that she is not liable to targeting. In particular, combatants must
presume that persons are civilians unless the behavior of those individuals provides
decisive reason to believe that they are combatants. Above this reasonable belief thresh-
old, the required level of certainty varies with the relative moral costs of mistakenly
killing an innocent person or mistakenly allowing innocent people to be killed.
17

The Road Ahead 17

These moral costs reflect the moral asymmetry between doing harm and allow-
ing harm. I illustrate how my approach would operate in practice, proposing new
interpretations of existing law as well as model rules of engagement.
In Chapter 6, I explore two possible justifications for the legal prohibition on
the use of indiscriminate weapons. The prohibition may be justified instrumentally,
as an indirect strategy of implementing more fundamental prohibitions on inflict-
ing intentional, unnecessary, and disproportionate harm on civilians. In particular,
the prohibition can assist in preventing attacks that are expectably disproportion-
ate, that is, whose possible military benefits, discounted by their probability, are
outweighed by their possible humanitarian costs, discounted by their probability.
However, I argue that it is intrinsically morally wrong to use weapons that, either
by their general nature or by their particular use, are more likely to strike civilians
or civilian objects than to strike combatants or military objectives. I argue that,
pursuant to the service view, such use of inaccurate weapons should be considered
unlawfully indiscriminate.
In Chapter 7, I reject the view of some states and scholars that attacking forces
are legally and morally permitted to forgo precautions in attack that would avoid
harm to civilians if these precautions carry significant risk to attacking forces or
to the success of their mission. A better view is that a precaution is “feasible” and
therefore required if the humanitarian considerations in favor of taking the pre-
caution outweigh the military considerations against taking the precaution. On a
“risk-​egalitarian” interpretation of this view, we should place equal weight on the
lives and welfare of combatants and civilians and require those precautions that
maximize expected value. Unsurprisingly, my own view is that the feasibility of a
precaution should reflect the moral asymmetry between doing and allowing harm.
On my view, a precaution should be considered feasible unless taking the precau-
tion would increase the marginal risk of allowing harm to combatants substantially
more than forgoing the precaution would increase the marginal risk of harming
civilians. In addition, I reject arguments that precautionary obligations should be
less stringent in humanitarian interventions that often endanger the very civilian
populations that they seek to protect.
In Chapter 8, I examine the most elusive concept in the law of war—​though
perhaps the most important—​namely the concept of proportionality. I argue that
an attack that inflicts incidental harm on civilians is objectively proportionate only
if it prevents opposing forces from inflicting substantially greater harm on attacking
forces or civilians in current or future military operations. This account reflects the
moral asymmetry between doing harm and allowing harm while looking beyond
particular tactical engagements to the broader operational picture. I argue that an
attack is epistemically proportionate only if the attacker reasonably believes—​on
the basis of decisive epistemic reasons—​that the attack will prove objectively pro-
portionate. Put another way, an attacker must reasonably believe that, of all the
18

18 Introduction

possible outcomes of the attack, it is probable that the actual outcome of the attack
will be objectively proportionate.
My account of jus in bello proportionality is in one way more determinate than
existing accounts—​for example, it does not compare incommensurable values but
instead compares immediate losses to civilians with future losses to civilians and to
attacking forces. At the same time, my account must still grapple with the predic-
tive uncertainty inherent in determining whether immediate losses inflicted will
be redeemed by future losses prevented. I therefore explore a number of decision
procedures and rules of engagement that combatants may use to make the best pos-
sible decision given the limited information available to them.
In Chapter 9, I reject the view of some states and scholars that attackers may
partly discount or entirely disregard collateral harm to human shields in determin-
ing the proportionality of an attack. Instead, I argue that civilians who are used
as involuntary shields retain their ordinary legal and moral protection. Here, as
elsewhere, attackers must weigh the collateral harm that they reasonably expect to
inflict on civilians—​who have done nothing to lose their legal or moral rights—​
against the military advantage that they reasonably anticipate.
More controversially, I reject the popular view that all civilians who serve as vol-
untary shields directly participate in hostilities and thereby lose their civilian immu-
nity entirely. Instead, I argue that voluntary shields directly participate in hostilities
only for such time as their physical presence is an integral part of a coordinated
military operation that is likely to directly cause serious harm. At the same time,
I argue that collateral harm to voluntary shields may be discounted—​though not
entirely disregarded—​in determining the proportionality of an attack. Since posi-
tive legal materials alone leave the legal status of voluntary shields indeterminate,
I argue that we should interpret the law in its morally best light, thereby giving
combatants the best possible moral guidance.
Finally, in Chapter 10, I argue that the Rome Statute of the International
Criminal Court fails to enforce the fundamental rules of distinction, discrimina-
tion, precautions, and proportionality. Defendants will often escape criminal liabil-
ity for recklessly attacking civilians; using indiscriminate weapons; forgoing feasible
precautions; and foreseeably causing excessive harm to civilians. We should revise
the Rome Statute, bringing it into alignment with the law of war as well as with
customary international criminal law. We should recognize violations of these fun-
damental rules as war crimes, thereby underscoring the moral seriousness of these
violations, affirming the moral legitimacy of the law of war, and reinforcing the
moral guidance that the law of war aims to provide.
We have much to discuss. Let us begin.
19

2
Law and Morality

International law prohibits the use of military force by states on the territory of
other states except with the consent of the territorial state, with the authorization
of the United Nations Security Council, or in individual or collective self-​defense
against an armed attack.1 Importantly, the law governing the conduct of hostilities
(the jus in bello) applies independently of the law governing the resort to military
force (the jus ad bellum or jus contra bellum) and applies symmetrically to all sides
irrespective of the legality of their respective war aims.
In international armed conflicts, international law grants combatants “the
right to participate directly in hostilities,” irrespective of the party for which
they fight, so long as they distinguish themselves from the civilian population
while they are engaged in an attack or in military operations preparatory to an
attack.2 Similarly, international law protects civilians, as well as combatants who
surrender, are taken prisoner, or are wounded, sick, or shipwrecked, “without
any adverse distinction based on the nature or origin of the armed conflict or
on the causes espoused by or attributed to the Parties to the conflict.”3 In short,
international law accepts both the legal equality of combatants and the legal equality
of noncombatants.
For some time, just war theory was dominated by the conventionalist view accord-
ing to which the morality of war tracks the law of war in most respects.4 On the
conventionalist view, combatants on all sides enjoy symmetrical moral permissions
while noncombatants on all sides enjoy symmetrical moral protections. All combat-
ants are morally permitted to intentionally harm opposing combatants and to inflict
necessary and proportionate collateral harm on noncombatants. All noncombatants
are morally protected from intentional, unnecessary, or disproportionate harm. In

1 United Nations Charter arts 2(4), 42, 51.

2 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977,
entered into force 7 December 1978) 1125 UNTS 3, arts 43(2), 44; International Committee
of the Red Cross, Customary International Humanitarian Law, vol 1 (CUP 2009) 11, 384.
3 Protocol I preamble.
4 In important respects, the conventionalist view itself departed from traditional just war
theory. See Gregory M Reichberg, “Just War and Regular War: Competing Paradigms,” in
David Rodin & Henry Shue (eds), Just and Unjust Warriors: The Moral and Legal Status of
Soldiers (OUP 2008) 193.
Law and Morality at War. First Edition. Adil Haque. © Adil Haque 2017. Published 2017 by Oxford
University Press
20

20 Law and Morality

short, the conventionalist view accepts both the moral equality of combatants and the
moral equality of noncombatants.
Since roughly the turn of the century, a number of revisionist scholars have sys-
tematically attacked the conventionalist view and with it the moral foundations
of the law of war. Revisionists deny that the moral norms governing armed con-
flict are symmetrical in the conventionalist sense. Most revisionists deny the moral
equality of combatants and many deny the moral equality of noncombatants as
well. On the revisionist view, only combatants pursuing a just cause are morally
permitted to intentionally harm opposing combatants or to inflict necessary and
proportionate collateral harm on noncombatants. Some revisionists also argue that
noncombatants who indirectly contribute to an unjust war effort are morally liable
to intentional or collateral harm.
Importantly, most revisionists agree that the legal norms governing armed con-
flict should remain symmetrical, not as a matter of moral principle but for prag-
matic and epistemic reasons. On the revisionist view, the law of war must diverge
from the deep morality of war.The law must permit what morality forbids—​killing
in pursuit of an unjust cause—​and forbid what some revisionists believe that moral-
ity permits—​killing civilians who support an unjust war effort.
Many revisionists, convinced that law and morality must diverge, are driven to
embrace the humanitarian view that the law of war should aim to reduce unneces-
sary suffering in war to the greatest extent practically possible. According to the
humanitarian view, while the deep morality of war may protect the moral rights of
individuals, the law of war can at best reduce aggregate harm. On this view, armed
forces convinced (or at least claiming) that they fight for a just cause will simply
ignore legal constraints that make military victory impossible. It follows that the law
of war can only effectively prohibit militarily unnecessary harm.
In this chapter, I argue that the debate between conventionalists and revision-
ists regarding the morality of war rests, in part, on a mistake. The legal equality
of combatants does not consist in symmetrical legal permissions to fight but
in symmetrical legal prohibitions on certain means and methods of fighting as
well as symmetrical legal immunities from criminal prosecution for acts that do
not violate those prohibitions. The law does not permit what morality forbids
because the law does not, in fact, permit combatants to fight for an unjust cause.
On my view, the law of targeting and attack contains no permissions but instead
contains only prohibitions. Conventionalists committed to the convergence of
law and morality need not defend symmetrical moral permissions to fight irre-
spective of one’s war aims. At the same time, revisionists who reject such sym-
metrical moral permissions need not insist on a sharp divergence between law
and morality.
Finally, I reject the humanitarian view and defend the service view, according
to which the law of war should aim to help combatants better conform to their
moral obligations. On the service view, individuals generally have decisive moral
21

Conventionalists and Revisionists 21

reason to obey the law only if they will better conform to their moral obligations
by following the law than by following their own moral judgment. The law of war
achieves its aim to the extent that just combatants are more likely to avoid acting
wrongfully if they obey the law while unjust combatants will act less wrongfully if
they obey the law.
The service view can accommodate the revisionist insight that the deep moral-
ity of war is asymmetrical while providing a non-​consequentialist defense of a
symmetrical law of war. The contingent aim of many states in developing the law
of war may be to reduce unnecessary suffering in war, but the constitutive aim of
the law of war itself is to provide a moral service to combatants. We should defend,
interpret, and develop the law of war by reference to the service view.

Conventionalists and Revisionists

The conventionalist view, that combatants are both legally and morally permit-
ted to fight irrespective of their war aims, is most closely associated with Michael
Walzer. In Just and Unjust Wars, Walzer offers a critical interpretation and qualified
defense of “the war convention,” which Walzer describes as “the set of articulated
norms, customs, professional codes, legal precepts, religious and philosophical prin-
ciples, and reciprocal arrangements that shape our judgments of military conduct.”5
According to Walzer, “the task of the moral theorist is to study the pattern as a
whole, reaching for its deepest reasons.”6
Since Walzer views the law of war as an integral part of the war convention, it is
no surprise that his interpretation and defense of the latter reads like an interpreta-
tion and defense of the former. Famously, Walzer argues that the moral principles
governing the resort to war and the moral principles governing the conduct of
war are “logically independent. It is perfectly possible for a just war to be fought
unjustly and for an unjust war to be fought in strict accordance with the rules.”7 In
particular, Walzer argues that combatants on all sides of a conflict possess “an equal
right to kill” opposing combatants as well as an equal (though limited) right to col-
laterally kill noncombatants.8 Finally,Walzer argues that all noncombatants retain an
equal right not to be intentionally killed or to be collaterally killed unnecessarily
or disproportionately.

5 Michael Walzer, Just and Unjust Wars (2nd edn Basic Books 1992) 44.
6 Walzer, Just and Unjust Wars, 45.
7 Walzer, Just and Unjust Wars, 21; see also 136 (“The rules of war apply with equal force to
aggressors and their adversaries … . Soldiers fighting for an aggressor state are not themselves
criminals: hence their war rights are the same as those of their opponents”).
8 Walzer, Just and Unjust Wars, 41; see also 36 (“Though there is no license for war-​makers,
there is a license for soldiers, and they hold it without regard to which side they are on; it is
the first and most important of their war rights. They are entitled to kill”).
22

22 Law and Morality

On Walzer’s view, combatants are morally equal because they pose threats to
others, while noncombatants are morally equal because they pose no threats to
anyone. According to Walzer, the “right not to be attacked … is lost by those who
bear arms ‘effectively’ because they pose a danger to other people.”9 It follows that
opposing combatants have “an equal right to kill” one another because they pose
lethal threats to one other (as well as to noncombatants) and thereby lose their
right not to be killed by one another. Importantly, combatants lose their right not
to be killed even if they do not act wrongfully. “Simply by fighting,” combatants
lose “their title to life and liberty, … even though, unlike aggressor states, they have
committed no crime.”10 Conversely, since noncombatants pose no threats, they
retain their ordinary rights not to be intentionally or unnecessarily killed.
The revisionist view, that combatants are only morally permitted to fight for a
just cause, is most closely associated with Jeff McMahan. In Killing in War, McMahan
argues that human beings lose their moral right not to be killed by posing unjust
threats but not by posing just threats. Combatants who fight for an unjust cause
(such as territorial conquest) typically pose unjust threats to opposing combatants
and thereby lose their moral right not to be killed. In contrast, combatants who
fight for a just cause (such as national self-​defense) typically pose just threats to
opposing combatants and therefore retain their moral right not to be killed. On the
revisionist view, the soldier fighting in national self-​defense and the soldier fighting
for territorial conquest do not have an “equal right to kill” one another.The former
has a right to kill the latter and the latter has no right to kill the former.11
McMahan grants that combatants are legally permitted to inflict collateral harm
on civilians irrespective of their war aims, but argues that combatants are only
morally permitted to inflict collateral harm on civilians in pursuit of a just cause.
Soldiers fighting in national self-​defense can sometimes morally justify collater-
ally harming civilians as a necessary and proportionate side effect of prevent-
ing a greater evil. In contrast, soldiers fighting for territorial conquest can never
morally justify collaterally harming civilians as a side effect of achieving an even
greater evil.
While McMahan rejects the moral equality of combatants on deontological
grounds, he accepts the legal equality of combatants on broadly consequentialist

9 Walzer, Just and Unjust Wars, 145. Similarly, Walzer writes that a combatant may “be per-
sonally attacked only because he already is a fighter. He has been made into a dangerous
man” (145).
10 Walzer, Just and Unjust Wars, 136.
11 Jeff McMahan, Killing in War (OUP 2009). McMahan allows that combatants fighting
for a just cause may pose unjust threats in particular cases, for example by threatening to
intentionally, unnecessarily, or disproportionately harm innocent civilians. Conversely, com-
batants fighting for an unjust cause may pose just threats in particular cases, for example in
the course of protecting innocent civilians from intentional, unnecessary, or disproportionate
harm. However, McMahan argues that such cases do not amount to a general moral equality
of combatants.
23

The Right to Fight: An Immunity, Not a Privilege 23

grounds. As McMahan observes, a legal prohibition on killing in pursuit of an

unjust cause will do little good and may do great harm. Most combatants, who
believe that they fight for a just cause, will simply ignore such a prohibition. Worse,
if combatants fear that they will be punished merely for fighting, then they may be
less willing to surrender and more willing to win at all costs.12 As Vattel observed,
“each party asserting that they have justice on their own side, will arrogate to them-
selves all the rights of war, and maintain that their enemy has none.”13 It follows
that, perhaps counter-​intuitively, the legal equality of combatants reduces wrongful
suffering in war.
For McMahan, the deep morality of war reflects the moral rights and duties
of each affected individual. In contrast, McMahan writes that “the law of war is
designed not to protect rights but to prevent harm.”14 On this view, “the laws
of war are conventions that we design for … mitigating the savagery of war,
seeking to bring about outcomes that are more rather than less just or morally
desirable.”15 In such passages, McMahan suggests that the legal equality of com-
batants rests not on the deep morality of war but on the humanitarian view of the
law of war.
I will have more to say about the humanitarian view shortly, but first things
first. In the next section, I reject the premise that the legal equality of combatants
consists in symmetrical legal permissions to fight irrespective of one’s war aims. If
I am right then the dispute between conventionalists and revisionists, as well as the
appeal of the humanitarian view, partly rests on a mistake.

The Right to Fight: An Immunity,

Not a Privilege
As noted at the outset, international law grants lawful combatants “the right to partici-
pate directly in hostilities” irrespective of the party for which they fight.16 Importantly,
this legal right is granted to lawful combatants but denied to civilians. Indeed, inter-
national law positively defines combatants as those with a right to fight and negatively
defines civilians as those who are not combatants. In this respect, the right to partici-
pate directly in hostilities contrasts with the right to be treated as a prisoner of war

12 McMahan, Killing in War, 190–​1.

13 Emer de Vattel, The Law of Nations (1758) (Thomas Nugent trans, Liberty Fund 2008)
book III, §188.
14 McMahan, Killing in War, 107.
15 Jeff McMahan, “The Morality of War and the Laws of War,” in David Rodin and Henry
Shue (eds), Just and Unjust Warriors (OUP 2008) 19, 34–​5 (“My suggestion, then, is that we
distinguish sharply and explicitly between the morality of war and the law of war”). See also
Jeff McMahan, “The Ethics of Killing in War” (2004) 114 Ethics 693, 730.
16 Protocol I art 43(2).
24

24 Law and Morality

upon capture, which is granted both to lawful combatants and to certain categories
of civilians.17
The right to participate directly in hostilities is often referred to as “the combatant’s
privilege” or as “the privilege of belligerency.” As David Rodin writes:

The legal privilege functions as a positive right to kill, much in the way that the liberty to kill in
self-​defence functions as a right within domestic criminal law. It functions as a codified excep-
tion to an established prohibition … .18

Similarly, Jeremy Waldron writes that

The default position, apart from any convention, is that intentionally killing or attacking
any human being is prohibited as murder. The laws of armed conflict provide an exception
to that; they establish what we call in the trade a Hohfeldian privilege in relation to what is
otherwise forbidden. And the rule about civilians is to be understood as a limitation on the
scope of that privilege.19

On this view, international law grants all combatants a limited legal permission to
target opposing combatants and to inflict necessary and proportionate collateral
harm on noncombatants. Simply put, international law grants lawful combatants a
“license to kill.”20
In sharp contrast, on my view, international law does not grant lawful combat-
ants a symmetrical legal privilege to fight but instead grants lawful combatants
a symmetrical legal immunity from criminal prosecution. To see this, recall that
international law grants “the right to participate directly in hostilities” exclusively
to combatants and not to civilians. If this exclusive legal right involves a legal per-
mission, then it should follow that combatants are legally permitted to fight while
civilians are legally forbidden to fight. However, international law nowhere forbids
civilians from participating directly in hostilities. Civilians do not violate interna-
tional law simply by taking up arms and joining the fight.21

17 See Geneva Convention (III) relative to the Treatment of Prisoners of War (opened for
signature August 12, 1949, entered into force October 21, 1950) 75 UNTS 135. Protocol I clearly
distinguishes between the right to be a combatant and the right to be a prisoner of war. See
Protocol I, art 43(2) (stating that members of armed forces “are combatants, that is to say, they have
the right to participate directly in hostilities”), art 44(1) (“Any combatant, as defined in Article
43, who falls into the power of an adverse Party shall be a prisoner of war”), arts 44(2), 44(5), and
47(1) (distinguishing the right to be a combatant from the right to be a prisoner of war).
18 David Rodin, “Morality and Law in War,” in H Strachan & S Scheipers (eds), The
Changing Character of War (OUP 2011) 446, 455.
19 Jeremy Waldron, Torture, Terror, and Trade-​offs (OUP 2010) 107. But see Jeremy Waldron,
“Responses to Zedner, Haque and Mendus” (2014) 8 Criminal Law and Philosophy 137
(writing that “Haque’s account of this in terms of a ban on prosecutions is more accurate and
more precise than my characterization in terms of a Hohfeldian privilege”).
20 Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict
(CUP 2010) 33.
21 See, eg, International Committee of the Red Cross, Interpretive Guidance on the Notion
of Direct Participation in Hostilities Under International Humanitarian Law (ICRC 2009) 83–​4
25

The Right to Fight: An Immunity, Not a Privilege 25

It follows that the legal “right to participate directly in hostilities” conferred

on combatants but denied to civilians cannot be a privilege or liberty-​r ight to par-
ticipate directly in hostilities, that is, the absence of a legal duty not to fight.22
After all, neither combatants nor civilians have a legal duty under international
law not to fight. Of course, this legal right also cannot refer to a claim-​r ight that
imposes on others legal duties of non-​interference (let alone positive assistance).
Obviously, opposing combatants have no legal duty not to prevent each other
from fighting.
Instead, international law confers a limited legal immunity on lawful combat-
ants, but not on civilians, from subsequent criminal prosecution.23 International law
prohibits states from criminally prosecuting combatants for acts that may violate
national law but do not violate international law. In contrast, international law does
not prohibit states from criminally prosecuting civilians under national law merely
for participating directly in hostilities. Civilians may be criminally prosecuted for
acts that do not violate international law but that violate national law, including
killing opposing combatants. The right of combatants, but not civilians, “to par-
ticipate directly in hostilities” is simply the right not to be criminally prosecuted
merely for participating directly in hostilities.24
As Seth Lazar observes, “immunity from prosecution can be justified on its own
terms; it need not be grounded in a right to fight.”25 Lazar writes that disconnect-
ing combatant immunity from the right to fight “would not need too radical a
change in the laws of war as they currently stand.” On my view, no change in the
laws of war is necessary because the right to fight just is a limited legal immunity
from prosecution for fighting.

(stating that “civilian direct participation in hostilities is neither prohibited by IHL nor crim-
inalized under the statutes of any prior or current international criminal tribunal or court”);
Philip Alston, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, Study on Targeted Killings, Human Rights Council, UN Doc A/​HRC/​14124/​
Add.6 (May 28, 2010), para 71 (“Under IHL, civilians … are not prohibited from participat-
ing in hostilities”).
22 See generally Wesley Hohfeld, Fundamental Legal Conceptions (1919).
23 See, eg, ICRC, Interpretive Guidance 83 (“This right [to directly participate in hostilities]
… merely provides combatants with immunity from domestic prosecution for acts which,
although in accordance with IHL, may constitute crimes under the national criminal law of
the parties to the conflict (the so-​called combatant privilege)”); Alston, Study on Targeted
Killings, para 71 (“the consequence of participation is two-​fold. First, … [civilian partici-
pants] may themselves be targeted and killed. Second, [civilian participants] do not have
immunity from prosecution under domestic law for their conduct”)).
24 Notice that civilians may be criminally prosecuted for directly participating in hostilities
irrespective of jus ad bellum considerations, while lawful combatants may not be criminally
prosecuted for directly participating in hostilities irrespective of jus ad bellum considerations.
25 Seth Lazar,“The Morality and Law of War,” in Andrei Marmor (ed), Routledge Companion
to Philosophy of Law (Routledge 2012) 376. See also Adil Ahmad Haque,“International Crime:
In Context and in Contrast,” in RA Duff, Lindsay Farmer, SE Marshall, Massimo Renzo, &
Victor Tadros (eds), The Structures of Criminal Law (OUP 2011) 106; Adil Ahmad Haque, “Law
and Morality at War” (2014) 8 Criminal Law & Philosophy 79.
26

26 Law and Morality

Importantly, this legal immunity is limited in several ways. First, combatants forfeit
their legal immunity by failing to distinguish themselves from civilians.26 Second,
this legal immunity only exists in international armed conflicts between state armed
forces, not in non-​international armed conflicts between states and organized
armed groups or between such groups.27 Most importantly, combatants are only
legally immune from criminal prosecution by foreign states under their domestic
criminal law. Conversely, combatants may be criminally prosecuted by their own
state under its domestic criminal law.28 Paradigmatically, lawful combatants fighting
for their own state may be criminally prosecuted by their own state for violating
rules of engagement that are more restrictive than international law. In addition,
combatants fighting against their own state may be criminally prosecuted—​most
notably for treason—​merely for directly participating in hostilities.29
As we have seen, combatants have no general “right to fight.” Instead, lawful
combatants in international armed conflicts have specific rights against foreign gov-
ernments not to prosecute them for acts that violate domestic criminal law but do
not violate international law.Vattel seemed to express this view when he wrote that
the law of nations
does not, to him who takes up arms in an unjust cause, give any real right that is capable of
justifying his conduct or acquitting his conscience, but merely entitles [an unjust combatant]
to the benefit of the external effect of the law, and to impunity among mankind.30

It seems that, according to Vattel, only the jus ad bellum promises a justification for
fighting, while the jus in bello offers only immunity from punishment.
States and scholars often use the terms “combatant’s privilege” and “combat-
ant immunity” interchangeably. As should now be clear, this lack of precision is
apt to mislead. Strictly speaking, international law confers no legal privilege on

26 Protocol I, art 44(3).

27 See ICRC, Customary IHL Study, 12 (“Persons taking a direct part in hostilities in
non-​international armed conflicts are sometimes labelled “combatants” … but [this] does
not imply a right to combatant status or prisoner-​of-​war status, as applicable in international
armed conflicts … . The lawfulness of direct participation in hostilities in non-​international
armed conflicts is governed by national law”).
28 See, eg, Lassa Oppenheim, International Law, Volume II: Disputes, War and Neutrality
(Hersch Lauterpacht ed, 7th edn 1952) 115 (“The privileges of members of armed forces
cannot be claimed by members of the armed forces of a belligerent who go over to the
forces of the enemy and are afterwards captured by the former. They may be, and always are,
treated as criminals”).
29 See Waldemar A Solf, “The Status of Combatants in Non-​ International Armed
Conflicts under Domestic Law and Transnational Practice” (1983) 33 American University
Law Review 53, 59.
30 Vattel, Law of Nations, book III, §192. According to an alternative translation, the law of
war “does not confer upon him whose cause is unjust any true rights capable of justifying
his conduct and appeasing his conscience, but merely makes his conduct legal in the sight of
men, and exempts him from punishment” (Emer de Vattel, The Law of Nations (1758) (Charles
G Fenwick trans, Carnegie 1916) book III, §192).
27

The Right to Fight: An Immunity, Not a Privilege 27

combatants to fight irrespective of their war aims. International law does not per-
mit what a combatant’s own state forbids. States are free to punish their own citi-
zens for acts that violate national law but not international law. On the contrary,
international law prohibits what a combatant’s own state might permit. States are
free to punish combatants of any nationality for acts that violate international law
even if those acts were authorized under national law. International law only pro-
hibits states from punishing foreign lawful combatants for acts that violate national
law but do not violate international law.
This dual function of international law—​imposing legal prohibitions on all
participants in hostilities while granting limited legal protections to lawful
combatants—​belies the notion that killing in war is presumptively lawful,31 or,
as Jeremy Waldron describes it, “a model that assumes that the default position is
that you can kill anyone you like in wartime.”32 On the contrary, killing in war, as
elsewhere, is presumptively criminal. International law bars the prosecution of for-
eign combatants for such presumptively criminal acts only when the latter kill in
conformity with international law. In contrast, the ordinary law of criminal homi-
cide remains in effect during war and may be applied to lawful combatants who
kill in violation of international law, to unlawful combatants, to combatants who
fight against their own state, and to civilians who directly participate in hostilities.
Importantly, a legal immunity is not a legal permission or an exemption from
a legal prohibition. A legal immunity is not a justification (like self-​defense), an
excuse (like duress), or a denial of responsibility (like insanity). On the contrary,
a legal immunity is a bar to criminal prosecution that applies irrespective of the
wrongdoing and blameworthiness of the actor.
To illustrate, consider that diplomats are immune from criminal prosecution even
if they satisfy all the elements of a criminal offense and can offer no exculpatory
defense on their behalf. Of course, diplomatic immunity does not rest on a special
legal permission conferred on diplomats but denied to ordinary citizens.33 Instead,
diplomatic immunity is a non-​exculpatory public policy defense that allows an indi-
vidual to “escape[] conviction in spite of [] culpability.”34 As Antony Duff explains
someone who claims diplomatic immunity when charged with an offense is not claim-
ing that she was authorized to engage in that conduct, or that her conduct was legally

31 For an example of this view, see George P Fletcher & Jens David Ohlin, Defending
Humanity (OUP 2008) 100.
32 Waldron, Torture,Terror, and Trade-​offs, 109–​11.
33 See, eg,Vienna Convention on Consular Relations (opened for signature April 18, 1961,
April 24, 1964) 500 UNTS 95, art 55(1) (“Without prejudice to their privileges and immuni-
ties, it is the duty of all persons enjoying such privileges and immunities to respect the laws
and regulations of the receiving State”).
34 Paul H Robinson,“Criminal Law Defenses: A Systematic Analysis” (1982) 82 Columbia
Law Review 199, 229–​32. Prior acquittal is another example of a bar to prosecution that does
not reflect on the legal or moral guilt of the accused.
28

28 Law and Morality

permissible—​indeed, she might admit that what she did was culpably criminal: but she is
denying that this court has the authority to call her to account for her conduct.35

Put another way, justifications and excuses answer a criminal charge, while immu-
nities entail that the accused need not answer the charge. Accordingly, legal immu-
nities are typically raised and adjudicated on prior to trial and, if sustained, result in
dismissal of charges. In contrast, justifications and excuses are typically raised and
adjudicated on during trial and, if sustained, result in a verdict of acquittal.
Although justifications, excuses, denials of responsibility, and bars to prosecution
allow the accused to avoid conviction, they each express a distinct moral mes-
sage. Justifications express the message that the accused acted permissibly, all things
considered, and that no one has a legitimate grievance or complaint against her.
Excuses express the message that the accused acted impermissibly but she does not
deserve blame. Bars to prosecution express the message that the accused may have
acted impermissibly and may deserve blame but that there are other reasons why
the state should not punish her. Less is required to morally justify bars to prosecu-
tion because bars to prosecution make relatively modest moral claims.
On my view, we should understand lawful combatant immunity as a bar to
prosecution that rests on prosaic considerations of treaty and custom, reciprocity
and impartiality, marginal incentives and aggregate consequences. No state wants
its own soldiers prosecuted by its adversaries, and so all states agree not to prosecute
the soldiers of their adversaries. In addition, such a legal immunity gives soldiers
determined to fight an incentive to fight within the constraints of international law.
If combatants will act less wrongfully if they obey the law than if they violate the
law, then the law should create such incentives.
Revisionists may be right that such prosaic considerations are too weak to mor-
ally justify a legal permission to kill in pursuit of an unjust cause. Perhaps, as Rodin
argues, a legal system that “creates a legal right for certain people to violate the moral
rights of others, as a means to achieving a broader desirable end” thereby violates
rights itself.36 However, such prosaic considerations may be strong enough to ground
a prohibition on criminally prosecuting foreign combatants who kill in pursuit of
an unjust cause but who do not violate international law. Put another way, if the law
claims that combatants are morally permitted to kill in pursuit of an unjust cause,
then law’s claim is false. If law claims only that states are morally prohibited from
prosecuting combatants for fighting for an unjust cause, then law’s claim may be
redeemed. Those killed in pursuit of an unjust cause have a legitimate moral griev-
ance or complaint—​one that a legal permission would deny—​but not necessarily
one that their state may vindicate through domestic criminal prosecution.

35 RA Duff, “‘I Might Be Guilty, But You Can’t Try Me’: Estoppel and Other Bars to
Trial” (2003) 1 Ohio State Journal of Criminal Law 245, 247.
36 Rodin, “Morality and Law in War,” 455.
29

The Right to Fight: An Immunity, Not a Privilege 29

On many jurisprudential views, including my own, law necessarily makes moral

claims. On such views, a legal right is a (putative) moral right claimed by law.37 In
some cases, the law purports to identify and protect a pre-​legal moral right, such as
the right not to be tortured. In other cases, the law purports to create a new moral
right, such as the right to vote, by changing the moral reasons that apply to those
subject to the law. On such views, if the law permits some actor to perform some
act, then the law claims that actor is morally permitted to perform that act. In par-
ticular, if international law confers a symmetrical legal permission to fight then it
asserts a symmetrical moral permission to fight. Indeed, if international law did not
make such moral claims, then conventionalists would not consider it part of the war
convention that conventionalists seek to interpret and defend.38
Thankfully, on my view, international law does not claim that killing in pursuit
of an unjust cause is morally permissible, that combatants are exempt from ordi-
nary moral constraints, or that combatants are always or even typically justified
or excused. International law claims only that states are morally prohibited from
criminally prosecuting lawful combatants for acts that conform to international law.
Put another way, international law does not purport to change the moral reasons
that apply to combatants but rather to change the moral reasons that apply to states.
Accordingly, Walzer was incorrect when he wrote that combatants who kill in
pursuit of an unjust cause “have committed no crime.” Often they have committed
crimes, albeit crimes for which they may not be prosecuted.
No doubt, the legal immunity of combatants carries a moral cost. Many com-
batants know or should know that they fight for an unjust cause.They may believe
that their war is unlawful or their war may be manifestly unlawful. There may
be retributive reasons to allow states to punish such combatants in proportion
to the wrongs they commit and their degree of moral fault. However, there are
also retributive reasons against allowing such prosecutions. Such prosecutions
would often be misdirected or abused—​particularly by states prosecuting enemy
soldiers—​resulting in the unjust punishment of combatants who fought for a just
cause or who reasonably believed that they fought for a just cause. In addition,
such prosecutions would often result in disproportionate punishment of combat-
ants who unreasonably but sincerely believed that they fought for a just cause. In

37 See, eg, John Gardner, “How Law Claims, What Law Claims,” in Law as a Leap of Faith
133 (OUP 2012); Joseph Raz, “Law, Morality and Authority,” in Ethics in the Public Domain
(OUP 1994).
38 But see McMahan, Killing in War, 105 (“The law of war does not assert the moral equal-
ity of combatants but it does assert the legal equality of combatants”). On the contrary, by
asserting the legal equality of combatants the law of war necessarily asserts the moral equal-
ity of combatants. It is just that the legal equality of combatants consists in immunities from
prosecution rather than in permissions to fight. Accordingly, the law of war necessarily asserts
that states have decisive moral reasons not to criminally prosecute opposing combatants for
acts not prohibited by the law of war.
30

30 Law and Morality

any event, even if the retributive reasons against combatant immunity outweigh
the retributive reasons supporting combatant immunity, it is hard to believe that
the former outweigh both the latter and the instrumental reasons supporting com-
batant immunity.
Importantly, combatant immunity does not entail general impunity for harms
inflicted in pursuit of an unjust cause. International law recognizes the crime of
aggression, which imposes criminal liability on political and military leaders for
the use of force in manifest violation of the United Nations Charter.39 Such politi-
cal leaders do not enjoy combatant immunity and such military leaders may not
claim combatant immunity with respect to the crime of aggression. If the crime
of aggression is indeed “the supreme international crime differing only from other
war crimes in that it contains within itself the accumulated evil of the whole”
then by punishing the whole we punish its constituent parts, at least to a degree.40
We will not thereby punish all those directly responsible for each killing in an
unjust war, but we will punish those ultimately responsible for all killing in that
unjust war.41
To conclude, international law does not prohibit lawful combatants from
participating in aggression, and immunizes them from prosecution for acts that
international law does not prohibit. The non-​prohibition and the immunity are
conceptually distinct but inextricably linked. If international law prohibited lawful
combatants from participating in aggression, then foreign states would be free to
prosecute them on that basis. No doubt, such a prohibition would have consider-
able expressive value. However, there is no combatant immunity for acts prohibited
by international law. We must choose between the proposed prohibition and the
existing immunity and, as we have seen, the reasons for the immunity are weighty
indeed.

Prohibitions and Permissions

In my view, “the law relating to the conduct of hostilities is primarily a law of
prohibition: it does not authorize, but prohibits certain things.”42 While the jus ad

39 See, eg, Rome Statute of the International Criminal Court (opened for signature July
17, 1998, entered into force July 1, 2002) 2187 UNTS 3, art 8 bis.
40 Judgment of the International Military Tribunal for the Trial of German Major War
Criminals 421 (1946). See also Vattel, Law of Nations, book III, §§183–​4.
41 While threatening leaders with prosecution for the crime of aggression carries costs and
risks—​including creating incentives to win by any means necessary and thereby avoid trial
and punishment—​the strong retributive reasons to punish such leaders may justify such costs
and risks. Thanks to Yitzhak Benbaji for pressing this point.
42 Protocol I Commentary para 2238. See also Richard R Baxter,“So-​Called ‘Unprivileged
Belligerency’: Spies, Guerillas, and Saboteurs” (1951) 28 British Yearbook of International
Law 323, 324 (“The law of war is … ‘prohibitive law’ in the sense that it forbids rather than
31

Prohibitions and Permissions 31

bellum sometimes authorizes the use of force by states, the jus in bello never author-
izes acts of violence by armed forces. Under international law, authorization for acts
of violence, if any, must come from the jus ad bellum.
As we have seen, international law applies the jus in bello equally to parties con-
forming to the jus ad bellum and to parties violating the jus ad bellum.Yet it would be
illogical for international law to prohibit a use of force under the jus ad bellum while
authorizing the acts of violence that make up that use of force under the jus in bello.
The prohibition of aggressive force under the jus ad bellum, the equal application of
the jus in bello, and the notion that the jus in bello authorizes acts of violence form a
logically inconsistent set. In my view, we should reject the final proposition.
Similarly, international law applies the jus in bello equally to state armed forces
and to non-​state armed groups.Yet international law hardly gives non-​state armed
groups a legal right to wage war against their governments.
The law of armed conflict (LOAC) does not tell combatants what they may do,
only what they may not do.43 The LOAC prohibits the intentional, unnecessary,
or disproportionate killing of civilians. However, no rule of the LOAC authorizes
or justifies the unintentional, unavoidable, and proportionate killing of civilians.
Similarly, the LOAC prohibits the intentional killing of combatants who have sur-
rendered or are incapacitated by injury or illness. However, no rule of the LOAC
authorizes or justifies the intentional killing of combatants who have not surren-
dered or been incapacitated. When we say that the LOAC “permits” such killings
we refer either to the absence of a prohibition in international law or to lawful
combatant immunity from prosecution for violations of domestic law. Indeed, it
would be more precise to describe acts not prohibited by the LOAC as merely
“tolerated” rather than as “permitted.”44
Along similar lines, John Westlake wrote of the laws of war that
These rules are always restrictive, never permissive in any other sense than that of the absence
of prohibition, for law can give no positive sanction to any act of force of which it can-
not secure the employment on the side of justice alone, even if the particular act be not
one which the law would prohibit both to the just and to the unjust if it could. Whenever

authorizes certain manifestations of force”); Derek Jinks, “International Human Rights Law
in Time of Armed Conflict,” in Andrew Clapham et al, Oxford Handbook of International Law
in Armed Conflict 656 (OUP 2014).
43 The law of detention and occupation may both authorize and constrain. On
this view, detaining and occupying powers temporarily assume responsibility for the
wellbeing of those detained or occupied, and therefore must have the legal power to
issue authoritative directives until the end of detention or occupation. See, eg, Geneva
Convention (III), art 21; Geneva Convention (IV) relative to the Protection of Civilian
Persons in Time of War (opened for signature August 12, 1949, entered into force
October 21, 1950), art 42. But see Jinks, “International Human Rights Law in Time of
Armed Conflict,” 666–​7.
44 See Accordance with International Law of the Unilateral Declaration of Independence
in Respect of Kosovo, Advisory Opinion, 2010 ICJ Rep 403, paras 8–​9 (declaration of Judge
32

32 Law and Morality

therefore in speaking of the laws of war it is said that a belligerent may do this or that, it is
always only the absence of prohibition that must be understood.45

Put another way, the law of targeting and attack confers no strong permissions.
As Joseph Raz explains, “an act is strongly permitted only if its being permitted is
entailed by a norm. It is permitted in the weak sense if the permission … is sim-
ply a consequence of there being no norms prohibiting the performance of the
action.”46 For example, the oft-​cited Lotus principle—​that states are permitted to
do what international law does not prohibit—​clearly refers to weak permissions
rather than to strong permissions.47
Infelicitously, some legal prohibitions are phrased as legal requirements, which
may in turn suggest implicit legal permissions. As we will see in Chapters 5 and 7,
international law requires attackers to take feasible precautions to avoid mistakenly
targeting civilians, unnecessarily harming civilians, or disproportionately harming
civilians. However, combatants are not authorized to attack so long as they take
these precautions. Instead, combatants are prohibited from attacking without taking
these precautions. Put another way, these legal requirements are conditional—​if you
attack, then you must take these precautions—​and entail no unconditional permis-
sions to attack.48 Similarly, combatants “shall at all times distinguish between [civil-
ians or] civilian objects and military objectives and accordingly shall direct their
operations only against military objectives.”49 Obviously, this basic rule means that
combatants shall not direct their operations against civilians or civilian objects. The
rule was hardly intended to encourage combatants to kill each other.
It is sometimes claimed that “the principle of military necessity in the customary
law of war may be viewed as justifying or permitting certain acts.”50 Since military
necessity is not defined in any treaty, proponents of this claim typically draw on two
sources. In my view, neither source supports this claim.
First, the so-​called Lieber Code states that
Military necessity, as understood by modern civilized nations, consists in the necessity of
those measures which are indispensable for securing the ends of the war, and which are law-
ful according to the modern law and usages of war.51

Simma) (criticizing the view that “everything which is not expressly prohibited carries with
it the same colour of legality; [this view] ignores the possible degrees of non-​prohibition,
ranging from ‘tolerated’ to ‘permissible’ to ‘desirable’ … That an act might be ‘tolerated’
would not necessarily mean that it is ‘legal,’ but rather that it is ‘not illegal’”).
45 John Westlake, II International Law (1907) 52.
46 Joseph Raz, Practical Reason and Norms 86 (OUP 1999).
47 See SS “Lotus” (France v Turkey) (Judgment) [1927] ICGJ 248.
48 See, eg, Protocol I art 57(5) (“No provision of this Article may be construed as author-
izing any attacks against the civilian population, civilians or civilian objects”).
49 Protocol I art 48.
50 US Department of Defense, Law of War Manual 1.3.3.2.
51 Instructions for the Government of Armies of the United States in the Field, General
Order No 100, art. 14 (April 24, 1863).
33

Prohibitions and Permissions 33

By the terms of this definition, measures are militarily necessary only if they are
lawful. However, measures are not lawful in virtue of military necessity. Measures
derive their lawfulness not from military necessity but “according to the laws and
usages of war,” that is, according to the specific legal rules that other provisions of
the Code purport to list. Military necessity is not a source of legal authority or even
part of the law of war.
The Lieber Code states that “Military necessity admits of all direct destruc-
tion of life or limb of armed enemies, and of other persons whose destruction is
incidentally unavoidable in the armed contests of the war.”52 However, these acts
are not lawful because they are “admitted” by military necessity. On the contrary,
military necessity “admits” these acts because they are lawful (that is, not prohib-
ited) according to the law and usages of war. Similarly, the Lieber Code states that
military necessity “does not admit” of cruelty, unnecessary suffering, torture, poi-
son, or perfidy.53 However, these tactics are not unlawful because military neces-
sity does not “admit” them. On the contrary, military necessity “does not admit”
of these tactics because these tactics are not “lawful according to the modern law
and usages of war.” Each of these tactics is specifically prohibited in other articles
of the Code, by reference to the laws of war rather than to military necessity.54
Almost a century later, the American Military Tribunal at Nuremberg wrote that
Military necessity permits a belligerent, subject to the laws of war, to apply any amount
and kind of force to compel the complete submission of the enemy with the least possible
expenditure of time, life, and money.55

As before, by the terms of this definition, military necessity permits force only if
that force is lawful. However, force is not lawful because it is militarily necessary.
Instead, every amount and kind of force is “subject to the laws of war,” with which
military necessity is partially contrasted.
Importantly, the Tribunal repeatedly states that “international law is prohibitive
law.”56 On this view, international law is a source of legal prohibitions, not a source
of legal authority.57 Accordingly, states are always (weakly) permitted to do what

52 Instructions for the Government of Armies of the United States in the Field, General
Order No 100, art 15.
53 Instructions for the Government of Armies of the United States in the Field, General
Order No 100, art 16.
54 Instructions for the Government of Armies of the United States in the Field, General
Order No 100, arts 44, 56, 65, 70.
55 US v List (American Military Tribunal, Nuremberg, 1948), 11 NMT 1230, at 1253.
56 US v List (American Military Tribunal, Nuremberg, 1948), at 1247, 1252, 1256. See also
at 1236 (“acts done in time of war … cannot involve any criminal liability … if the acts are
not prohibited by the conventional or customary rules of war”).
57 The Tribunal did not mistake the absence of a legal prohibition for an affirmative
authorization or endorsement. The Tribunal condemned reprisals against civilian hostages as
“a barbarous relic of ancient times” and bemoaned the “complete failure on the part of the
nations of the world to limit or mitigate the practice by conventional rule” (at 1249, 1251).
34

34 Law and Morality

international law does not prohibit them from doing. It is in this sense that belliger-
ent states are (weakly) permitted to use force subject to the laws of war. We do not
need to invoke military necessity to explain this result.
As the Tribunal observed, the laws of war prohibit the destruction or seizure
of property “unless such destruction or seizure be imperatively demanded by the
necessities of war.”58 Other legal rules “make no such exceptions to [their] enforce-
ment.”59 Today, specific legal prohibitions contain exceptions for cases of military
necessity, public necessity, medical and investigative necessity, or the necessity of
providing for the civilian population.60 However, “The[se] prohibitions … con-
trol, and are superior to military [or other] necessities of the most urgent nature
except where the [prohibitions] themselves specifically provide the contrary.”61
Accordingly, military necessity, public necessity, medical and investigative necessity,
and so forth are not free-​standing sources of legal authority. These are non-​legal
concepts that must be incorporated into specific legal rules in order to have any
legal effect.
Since the jus in bello applies equally to opposing states, military necessity cannot
legally authorize the acts of violence that make up an unlawful act of aggression.62
Since the jus in bello applies equally to state armed forces and non-​state armed
groups, military necessity cannot grant non-​state armed groups a legal right to
wage war against their governments. Accordingly, lawful combatants charged with
murder in the criminal courts of an adversary would hardly claim that their killings
were justified by military necessity. Instead, such lawful combatants would claim
that they are immune from prosecution for acts not prohibited by the law of armed
conflict.
To conclude, international law does not guarantee the equal legal status of com-
batants but only the equal application of the jus in bello.63 Since the jus in bello is
primarily prohibitive rather than permissive, combatants may conform to the jus in
bello yet remain legally unequal under other branches of international or national
law. Accordingly, common article 3 of the 1949 Geneva Conventions, as well as arti-
cle 4 of Protocol I, underscore that their equal application “shall not affect the legal
status of the Parties to the conflict.”64 The prohibitions contained in the LOAC

58 US v List (American Military Tribunal, Nuremberg, 1948), at 1296.

59 US v List (American Military Tribunal, Nuremberg, 1948), at 1256.
60 See, eg, Protocol I, arts 34(4)(b), 63(5), 70(3)(c).
61 US v List (American Military Tribunal, Nuremberg, 1948), at 1296.
62 Note that the Lieber Code long predates the legal prohibition of aggression. See
General Order No 100, art. 67 (“The law of nations allows every sovereign government to
make war upon another sovereign state”).
63 I owe this crisp formulation to Dapo Akande.
64 See, eg, Geneva Convention (I) for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field (opened for signature August 12, 1949, entered into
force October 21, 1950), art 3; Protocol I, art 4.
35

Human Rights in War 35

apply alongside other applicable legal rules, working together “to ensure a better
protection for the victims of those armed conflicts.”65

Human Rights in War

Since the LOAC does not authorize or justify the killings that it does not spe-
cifically prohibit, it cannot permit killings that are prohibited by other bodies of
law. Most importantly, international human rights law prohibits the arbitrary dep-
rivation of life.66 In armed conflict, this general prohibition on arbitrary killing
applies alongside the specific prohibitions of the LOAC. As the Inter-​American
Commission on Human Rights observes, “humanitarian law generally afford[s]‌
victims of armed conflicts greater or more specific protections than do the more
generally phrased guarantees in … human rights instruments.”67 Importantly, these
specific protections were designed to guide combatants and protect civilians in the
unique circumstances of armed conflict.
Similarly, Protocol II states that “international instruments relating to human rights
offer a basic protection to the human person” while the LOAC aims “to ensure a bet-
ter protection for the victims of those armed conflicts.”68 As Protocol II makes clear,
human rights law and the LOAC do not conflict, as both offer protections from vio-
lence rather than licenses to commit violence. Accordingly, “when Protocol II in its
more detailed provisions establishes a higher standard than the Covenant [on Civil and
Political Rights], this higher standard prevails,” while “provisions of the Covenant …
which provide for a higher standard of protection than the protocol should be regarded
as applicable” in appropriate cases.69 On this view, the LOAC can only add to, but can
never subtract from, the protection that individuals enjoy under human rights law.
It is true that, in its Nuclear Weapons advisory opinion, the International Court of
Justice (ICJ) famously wrote that
In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities.
The test of what is an arbitrary deprivation of life, however, then falls to be determined by

65 Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the
Protection of Victims of Non-​International Armed Conflicts (Protocol II) (adopted June 8,
1977, entered into force December 7, 1978) 1125 UNTS 609, preamble.
66 See, eg, International Covenant on Civil and Political Rights (ICCPR) (opened for sig-
nature December 19, 1966, entered into force March 23, 1976) 999 UNTS 171, art 6(1). Note
that an act may be otherwise lawful yet arbitrary. See ICCPR, art 17(1) (“No one shall be sub-
jected to arbitrary or unlawful interference with his privacy, family, home or correspondence”).
67 Juan Carlos Abella v Argentina (Case 11.137) Report No 55/​97 [18 Nov 1997] OEA/​Ser
L/​V/​II.98, paras 159–​60 (“It is, moreover, during situations of internal armed conflict that
these two branches of international law most converge and reinforce each other”).
68 Protocol II, preamble.
69 Michael Bothe, Karl Josef Partsch, and Waldemar A Solf, New Rules for Victims of Armed
Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949
(Martinus Nijhoff 1982) 636.
36

36 Law and Morality

the applicable lex specialis, namely, the law applicable in armed conflict which is designed to
regulate the conduct of hostilities.70

This passage suggests that, in the context of armed conflict, deprivations of life
that do not violate the LOAC are necessarily non-​arbitrary under human rights law.
On this view, the LOAC does not need to permit what human rights law prohibits
because the LOAC determines what human rights law prohibits in armed conflict.
We should reject this view.
In its advisory opinion, the ICJ took for granted the contingent content of the
LOAC, namely that its “cardinal principles” prohibit weapons “that are incapable of
distinguishing between civilian and military targets” or that “cause unnecessary suf-
fering to combatants.”71 Understandably, the ICJ considered these cardinal principles
sufficient to adjudicate the legality of the threat or use of nuclear weapons. However,
if these cardinal principles never entered the LOAC then clearly the LOAC would
not prohibit all or even most arbitrary deprivations of life in armed conflict.
The extent to which the LOAC prohibits arbitrary killing in armed conflict is
contingent on the content of the LOAC, which is itself contingent on treaty and
custom, which is in turn contingent on what states agree to, how states behave, and
what states believe. There is no reason why such contingencies should determine
the content of human rights law.
Of course, it is hard to imagine the LOAC without the prohibitions on indis-
criminate weapons and unnecessary suffering. A different example may help illus-
trate that the content of the LOAC is a contingent matter. Protocol I provides that
When a choice is possible between several military objectives for obtaining a similar military
advantage, the objective to be selected shall be that the attack on which may be expected to
cause the least danger to civilian lives and to civilian objects.72

Strikingly, the US Department of Defense denies that this rule reflects customary
international law.73 This view seems clearly mistaken.74 But imagine if this view
were true. Imagine that attacking forces could cut off an enemy supply route by
destroying either of two bridges, the first with no civilian traffic and the second
full of civilians on their way to work, school, or their homes. Assume that the
military advantage of destroying the second bridge would render the collateral
harm to civilians proportionate. However, such collateral harm would be unnecessary,
since destroying the first bridge would yield the same advantage. Clearly, if attack-
ing forces strike the second bridge rather than the first, then they would kill the
civilian travelers arbitrarily whether or not they would thereby violate the LOAC.

70 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep 226,
para 25.
71 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, para 78.
72 Protocol I, art 57(3).
73 US Department of Defense, Law of War Manual (2015) 5.11.5.
74 See Adil Ahmad Haque, “Off Target: Selection, Precaution, and Proportionality in the
DoD Manual” (2016) 92 International Law Studies 31.
37

Human Rights in War 37

Alternatively, assume for the sake of argument that Protocol I crystallized the
precautions rule for the first time.75 Now imagine that the Diplomatic Conference
that produced Protocol I never convened. If wartime killings are arbitrary only if
they are prohibited by the LOAC, then careless and easily avoidable killings would
not be arbitrary. Put another way, on this view, Protocol I did nothing to make the
LOAC more respectful of human rights or to limit arbitrary killing in armed conflict.
Similarly, if Protocol I had omitted the precautions rule, then this omission would not
have affected Protocol I’s human rights credentials. This seems impossible to believe.
When applying human rights law, we should ask whether a particular depriva-
tion of life was arbitrary given the circumstances. While we may certainly look to
the LOAC to inform our interpretation of which deprivations of life are arbitrary
in armed conflict, there is no reason to assume that the LOAC is so perfect that it
effectively prohibits all arbitrary deprivation of life in armed conflict. In the end,
whether a particular deprivation of life is arbitrary remains a question of human
rights law, not of the LOAC. Our best interpretation of human rights law, informed
but not determined by looking to the LOAC, should prevail.
During armed conflict, the LOAC may or may not prove sufficient to prohibit
arbitrary killing. That will depend on the contingent content of the LOAC, as well
as on the factual circumstances, not on some a priori relationship between the
LOAC and human rights law. Outside of armed conflict, killing is almost always
arbitrary unless it follows strict rules governing self-​defense or law enforcement.
During armed conflict, killing opposing combatants may seldom prove arbitrary.
However, as we shall see in Chapter 4, killing a combatant whom one could safely
capture may not violate the LOAC but may fail to respect the human right to life.
The relationship between the LOAC and human rights is teleological, not con-
stitutive. The LOAC aims to protect human rights to the greatest extent possible in
armed conflict, not to define what human rights mean in armed conflict.76 It is not
an a priori or conceptual truth that the LOAC, whatever its content, prohibits arbi-
trary killing. If the LOAC prohibits even most arbitrary killing in armed conflict,
then this is a contingent and reversible human achievement. Accordingly, we may
draw on the LOAC to interpret human rights law, or draw on human rights law to
interpret the LOAC, but neither body of law determines the content of the other.77

75 This assumption is probably correct, but I do not wish to argue for it here. A very
limited version of the precautions rule is found in Hague Convention (IX) concerning
Bombardment by Naval Forces in Time of War (opened for signature October 18, 1907,
entered into force January 26, 1910), art 2.
76 See, eg, UK Ministry of Defense, Law of Armed Conflict Manual (OUP 2005) 1.8 (one
purpose of the law of armed conflict is “to safeguard the fundamental human rights of per-
sons who are not, or are no longer, taking part in the conflict … and of civilians”).
77 The European Convention on Human Rights prohibits intentional deprivation of life,
with narrow exceptions, but permits measures derogating from that obligation “in respect of
deaths resulting from lawful acts of war.” Convention for the Protection of Human Rights
and Fundamental Freedoms, 213 UNTS 222, entered into force September 3, 1953, art 15.
38

38 Law and Morality

The Humanitarian View

As we have seen, revisionists assume that combatants are legally permitted to fight
for an unjust cause, argue that combatants are not morally permitted to fight for
an unjust cause, and conclude that law and morality sharply diverge. Moreover,
revisionists argue that law and morality must diverge, since a legal prohibition on
fighting for an unjust cause will either be ignored or create perverse incentives.
These revisionists conclude that, while the deep morality of war is concerned with
individual rights and directed duties, the law of war should content itself with the
consequentialist aim of reducing wrongful suffering in war to the greatest extent
practically possible.
As we have seen, this revisionist argument rests on a false premise. Combatants
are not legally permitted to fight for an unjust cause, though lawful combatants are
legally immune from criminal prosecution so long as they fight according to the
rules. It follows that revisionists should not feel compelled to embrace the humani-
tarian view. At the same time, the humanitarian view can seem plausible—​even
attractive—​on its face. As a general matter, the aim of reducing wrongful suffering
in war is one that we should all share. We should therefore evaluate the humanitar-
ian view on its own merits.
According to the humanitarian view, the guiding aim of international humani-
tarian law (IHL) should be to reduce wrongful suffering in war by prohibiting
militarily unnecessary killing, maiming, and destruction. More precisely, IHL should
aim to prohibit types of harmful acts that are generally or typically militarily unnec-
essary. For example, on this view, IHL rightly prohibits targeting civilians because
generally it is unnecessary to target civilians in order to defeat opposing armed
forces. The humanitarian view is sometimes expressed in terms of striking a bal-
ance between military and humanitarian considerations. Unfortunately, the rhetoric
of balancing often proves empty. When military and humanitarian considerations
directly and broadly conflict, military considerations always seem to prevail.
The humanitarian view was elegantly expressed by Vattel, who held that
All acts of hostility which injure the enemy without necessity, or which do not tend to pro-
cure victory and bring about the end of the war, are unjustifiable, and as such condemned
by the natural law.78

Importantly, such measures are permitted only “to the extent strictly required by the exi-
gencies of the situation” (art 15). On my view, a court applying the Convention may find
that intentional killings that conform to the law of war nevertheless violate the Convention
because the measures taken were not strictly necessary. For example, a court may find that
measures derogating from the Convention are strictly required only in certain parts of a
state’s territory, or only in certain situations. In other areas or situations, the Convention may
very well apply with full force.
78 Vattel, Law of Nations, book III, §172.
39

The Humanitarian View 39

At the same time,Vattel saw that warring parties should not be left free to judge
the necessity or utility of their own military operations on a case-​by-​case basis,
since such an open-​ended principle would invite self-​serving judgments and end-
less recriminations. Instead,
as between Nation and Nation, we must lay down general rules, independent of circum-
stances and of certain and easy application … . Hence, … the voluntary Law of Nations
limits itself to forbidding acts that are essentially unlawful and obnoxious … . On the other
hand, it permits or tolerates every act which in its essential nature is adapted to attaining the
end of the war; and it does not stop to consider whether the act was unnecessary, useless or
superfluous in a given case unless there is the clearest evidence that an exception should have
been made in that instance; for where the evidence is clear freedom of judgment cannot be
exercised.79

On this view, international law should prohibit acts of war that are typically militar-
ily unnecessary while tolerating acts of war that are typically militarily necessary.
The humanitarian view later found expression in several foundational treaties.
Most notably, the St Petersburg Declaration states that “the progress of civilization
should have the effect of alleviating as much as possible the calamities of war,” that
law must fix “the technical limits at which the necessities of war ought to yield
to the requirements of humanity,” and that the parties will continue to work “to
conciliate the necessities of war with the laws of humanity.”80 Similarly, the fourth
Hague Convention was “inspired by the desire to diminish the evils of war, as far as
military requirements permit.”81
Recently, Janina Dill and Henry Shue have offered a vigorous philosophical
defense of the humanitarian view. On their account, the aim of IHL should be “to
limit all killing [in armed conflict] as much as possible.”82 It is not possible to limit
killing in ways that make winning impossible, because parties determined to win
will simply ignore such limitations. However, it is possible to limit killing in ways
that make winning more difficult. Dill and Shue reason that the law is right to cat-
egorically prohibit targeting civilians because this prohibition limits the killing of
a large category of individuals and generally it is possible to win without targeting
civilians. In some cases, it may be easier to win by targeting civilians, but this is an
option that the law can foreclose without being systematically ignored. The law is

79 Vattel, Law of Nations, book III, §173.

80 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400
Grammes Weight [St Petersburg Declaration], Nov 29/​Dec 11, 1868, 138 Consol TS 297, 18
Martens Nouveau Recueil (ser 1) 474, preamble.
81 Hague Convention (IV) Respecting the Laws and Customs of War on Land (opened
for signature October 18, 1907, entered into force January 26, 1910) 3 Martens Nouveau
Recueil (ser 3) 461, preamble.
82 Janina Dill & Henry Shue, “Limiting the Killing in War: Military Necessity and the St.
Petersburg Assumption,” (2012) 26 Ethics & International Affairs 311, 319.
40

40 Law and Morality

also right not to prohibit targeting combatants because generally it is not possible
to win without targeting combatants. According to Dill and Shue, “the rules for the
conduct of war cannot in general restrict the killing of combatants” or they will be
ignored.83 Since all individuals are either civilians or combatants, it follows that the
legal restrictions on killing civilians limit lawful killing in armed conflict as much
as possible.84
Importantly, Dill and Shue argue that most combatants—​just and unjust alike—​
are not morally liable to be killed. It seems to follows that, on their view, law and
morality sharply conflict, since intentionally killing individuals who retain their
moral right not to be killed is almost always morally wrong. Nevertheless, Dill
and Shue argue that, by limiting lawful killing as much as possible, IHL indirectly
reduces wrongful killing as much as possible.85 Thus, rather than aiming to prohibit
wrongful killing, IHL aims to minimize wrongful killing in part by permitting some
wrongful killing.
As Dill and Shue observe, “even if we all agree on noncombatant immunity, it
matters what underlies the application of discrimination.”86 As it happens, Dill and
Shue provide the wrong explanation for the right result. After all, if many soldiers
retain their moral rights then in some cases soldiers may violate fewer rights by
targeting civilians than by targeting combatants. In these cases, by limiting lawful
killing in war IHL may increase actual killing.When means subvert ends in this way,
rule-​consequentialism seems like rule-​fetishism. It is not clear why combatants
who internalize the aim of reducing wrongful suffering in war will follow a legal
rule prohibiting attacks on civilians when attacking civilians will in fact reduce
wrongful suffering. Indeed, while the humanitarian view aims to reduce wrong-
ful suffering in war, IHL in fact concentrates suffering in war on one category of
individuals rather than another.
The deeper problem with the humanitarian view is that while the utility of tar-
geting civilians varies, the morality of targeting civilians remains constant. To take
an extreme example, suppose that if IHL does not prohibit the intentional killing of
young children, then this will in fact reduce wrongful suffering in war. Such a posi-
tion might deter states from initiating armed conflict and encourage belligerents
to surrender more quickly when victory is in doubt. On the humanitarian view,

83 Dill & Shue, “Limiting the Killing in War,” 323.

84 Interestingly, Dill and Shue write that “proportionality … prohibits conduct that, even
though it might be necessary, can be expected to cause unintended but foreseeable civilian
damage that is excessive” (“Limiting the Killing in War,” 320). Presumably they believe that
attacks that are tactically necessary to achieve concrete and direct military advantages are
seldom strategically necessary to defeat opposing armed forces. Otherwise, on their assump-
tions, jus in bello proportionality would fail to constrain the conduct of parties determined
to win.
85 Dill & Shue, “Limiting the Killing in War,” 329.
86 Dill & Shue, “Limiting the Killing in War,” 330.
41

The Humanitarian View 41

IHL should adopt this position and not prohibit the intentional killing of young
children. If this implication seems hard to accept, then civilian immunity likely does
not rest on empirical contingencies in the way the humanitarian view suggests.
I will have more to say about civilian immunity in Chapter 3.
Similarly, there is only an empirically contingent connection between the vol-
untary conduct of combatants and the utility of killing them, but there are mor-
ally necessary connections between the voluntary conduct of combatants and the
morality of killing them. Many combatants pose unjust threats to civilians who
retain their basic rights, while most civilians make indirect and superfluous contri-
butions to their armed forces. In addition, combatants can avoid being eliminatively
harmed more easily than civilians can avoid being opportunistically harmed, in part
because combatants choose to make themselves lawful targets. I will say more about
these considerations at the end of Chapter 3.87
These moral considerations systematically favor legal rules that prohibit targeting
civilians but do not prohibit targeting combatants. Killing civilians is, at a minimum,
intrinsically morally worse than killing combatants. It follows that IHL should not
aim to limit all killing as much as possible and distribute lawful killing in whatever
way will in fact minimize wrongful killing in war. At the very least, IHL should
skew the distribution of actual killings by strictly limiting the more wrongful kill-
ings (of civilians) but not comparatively less wrongful killings (of combatants).
Indeed, in subsequently published work, Dill shows that law might limit killing
as much as militarily possible in at least two very different ways.88 According to the
“logic of sufficiency,” law should tolerate intentionally and collaterally killing com-
batants, as this is both necessary and sufficient for military victory. At the same time,
the law should prohibit intentionally killing civilians, as this is generally unneces-
sary for military victory. In contrast, according to the “logic of efficiency,” the law
should allow each party to achieve its war aims in the quickest and least costly way
possible, even if this means targeting civilians and civilian objects. Importantly, Dill
argues that it is impossible to empirically determine which “logic” of warfare will
best reduce killing in war, that is, whether “contained wars are the least destructive”
or whether “sharp wars are brief.”
Accordingly, Dill argues that we should prefer the logic of sufficiency to the logic
of efficiency because generally it is morally worse to kill civilians than to kill combat-
ants. As Dill observes, civilians are often vulnerable, defenseless, and non-​threatening.
Moreover, a legal rule prohibiting attacks on civilians allows civilians to be secure
in their expectations that they will not be attacked unless they exercise their agency
in defined ways. This refinement of Dill’s view is both significant and welcome.
However, the “logic of sufficiency” remains grounded in rule-​consequentialism.

87 See also Seth Lazar, Sparing Civilians (OUP 2016).

88 Janina Dill, Legitimate Targets (CUP 2015) 262–​3.
42

42 Law and Morality

Non-​consequentialist considerations merely support one set of rules over another

when we cannot tell which set of rules would yield better consequences.
It is not clear why individual soldiers would follow rules justified on rule-​conse-
quentialist grounds rather than follow their own moral judgment. After all, Dill and
Shue do not argue that soldiers will wrongfully kill fewer people by following IHL
than by violating IHL, or even that a smaller proportion of their killings will be
wrongful killings if they follow IHL than if they violate IHL. They argue that sol-
diers who follow IHL will wrongfully kill one category of people but not another
category of people. It is hard to see why a rational, moral soldier would abstain from
militarily efficacious actions on such grounds. Presumably, such soldiers will be
concerned primarily with the rights and duties they infringe and only secondarily
with the aggregate consequences of general rules.
Soldiers are not computers, and legal norms are not software programs. Soldiers
are human beings who bear moral obligations and exercise moral judgment. The
law must address them as such. Soldiers need a reason to obey the law, and the
most obvious reason to do so is that they will better fulfill their moral obligations
by following the law than by following their independent moral judgment. As
Seth Lazar nicely observes, rule-​consequentialism is a third-​person view of moral
justification, while soldiers need a first-​person view that addresses them as moral
agents.89
None of this is to say that legal rules should never aim at producing good aggre-
gate consequences, or that individuals never have reasons to obey such rules. Often,
we have moral reasons to cooperate with others in order to achieve shared aims
together that we could not achieve individually (think of making small contribu-
tions to the same charity). Similarly, we may have moral reasons to coordinate with
others so that we can pursue our individual aims more effectively or more safely
(think of driving on the same side of the road). In contrast, in war we compete with
our adversary, and our moral reasons do not depend on their behavior. We can
avoid targeting civilians, and have moral reasons to do so, irrespective of how our
adversary behaves.
Of course, many scholars believe that rule-​consequentialist sensibilities, whatever
their normative credentials, drove the historical development of IHL. For example,
David Luban argues that “humanitarianism in war is plainly a form of negative
benthamism” aimed at reducing aggregate suffering.90 Luban cites the preamble to
the St Petersburg Declaration as evidence that the historical aim of IHL was “alle-
viating as much as possible the calamities of war.”91

89 See Lazar, “The Morality and Law of War.”

90 David Luban, “Human Rights Thinking and the Laws of War,” in Jens David Ohlin
(ed), Theoretical Boundaries of Human Rights and Armed Conflict (OUP 2016) 52.
91 St Petersburg Declaration, preamble.
Exploring the Variety of Random
Documents with Different Content
Fig. 182.—Statue de l’Archange sur l’église Saint-Michel de Lucques (Toscane), fondée au huitième
siècle. La façade est postérieure de plusieurs siècles.

Fig. 183.—Saint Michel et ses anges terrassant le démon. Peint par Cimabue dans l’église Sainte-
Croix de Florence. Treizième siècle.
Fig. 184.—Saint Michel, saint Gabriel et saint Raphaël groupés autour de la figure centrale du
Sauveur. Peinture grecque du quinzième siècle.
Fig. 185.—Saint Michel avec la Vierge et l’enfant Jésus. Peint à fresque dans l’église Sainte-Croix de
Florence. École de Giotto.
Fig. 186.—Saint Michel conducteur des âmes.—Un ange présentant une âme à saint Michel.
Miniature du Livre des Angelz. Ms. du XVᵉ siècle. Nº 186 à la Bibl. nat.
Fig. 187.—Saint Michel peseur des âmes. Partie centrale du tableau du Jugement dernier peint par
Memling, dans l’église Sainte-Marie, à Dantzig. Quinzième siècle.
Fig. 188.—Saint Michel pesant les âmes et terrassant le Dragon. Peint par Luca Signorelli. Église
Saint-Grégoire, à Rome. Seizième siècle.
 Fig. 189.—Plaque italienne en bronze. Seizième siècle.
Fig. 190.—Plaque allemande en argent repoussé. Seizième siècle.
Fig. 191.—Saint Michel terrassant le démon avec les seules paroles: Quis ut Deus. Tableau italien du
seizième siècle.
 Fig. 192 à 206.—Jetons d’échevinage et monnaies à l’effigie de saint Michel.

Fig. 207.—Saint Michel conducteur et défenseur des âmes. Fragment d’un tableau peint par Mabuse.
Seizième siècle.
Fig. 208.—Saint Michel en costume de l’époque de Louis XIV. Sculpture en ivoire du dix-septième
siècle.
Fig. 209.—Saint Michel d’après un émail de Limoges signé Laudin. Dix-septième siècle.
Fig. 210.—Plaque en bronze de la fin de la Renaissance italienne.
Fig. 211.—Saint Michel terrassant le Démon. D’après une plaque en faïence émaillée d’Aranda
(Espagne). Dix-septième siècle.
Fig. 212.—Saint Michel terrassant le Dragon. D’après une broderie au passé. Dix-huitième siècle.

PIÈCES JUSTIFICATIVES
’histoire générale ne comporte pas tous les détails d’une chronique locale;
elle se prête encore moins aux longues citations, aux froides nomenclatures
et aux discussions sur les points controversés.
Il en est ainsi dans l’histoire du culte de saint Michel. Plusieurs
assertions demandent des preuves; certains faits ont besoin d’être
éclaircis. Le lecteur ne serait pas satisfait, s’il ne trouvait des pièces
justificatives à l’appui des opinions que l’auteur émet le premier, ou défend
contre des écrivains d’une valeur incontestée. D’autre part, saint Michel avec
ses attributs guerriers, sa mission auprès des âmes, ses luttes et ses
triomphes, a excité de tous temps l’enthousiasme des poètes. Il a partout sa
place d’honneur dans la poésie lyrique, dans le drame et dans l’épopée. Nous
avons rapporté plusieurs faits pour démontrer cette assertion; mais il est utile
de multiplier les citations, afin de mieux faire ressortir l’influence que saint
Michel a exercée dans la littérature et les arts.
C’est pourquoi nous publions ici quatorze pièces justificatives ou
appendices que nous classons selon l’ordre chronologique, et nous
indiquons, quand il y a lieu, les pages qui leur correspondent dans le texte.
La première de ces pièces, La révolte des Anges d’après une tablette
chaldéenne, prouve que la grande lutte engagée entre saint Michel et Lucifer,
était connue dès la plus haute antiquité. Dans les pièces II, III, IV, V, VI, IX,
X, XI et XII, nous avons des modèles de cette poésie où l’Archange figure
tour à tour comme le vainqueur de Satan, le conducteur et le peseur des
âmes, le génie tutélaire de l’Église et de la France. Le septième appendice
est dû à M. Deschamps de Vadeville: il renferme la liste des chevaliers qui
défendaient le Mont-Saint-Michel en 1427, sous la conduite de Louis
d’Estouteville. Jusqu’ici, la question de l’atelier monétaire établi au Mont-
Saint-Michel n’avait pas été résolue; le huitième appendice comble cette
lacune. Enfin, les pièces XIII et XIV nous fournissent des documents
précieux sur l’histoire du Mont-Saint-Michel pendant le XVIIIᵉ siècle et à
l’époque de la Révolution.

I
AVANT L’ÈRE CHRÉTIENNE

LA RÉVOLTE DES ANGES, D’APRÈS UNE TABLETTE

CHALDÉENNE
[Page 84.]
 C’est à M. Talbot que nous empruntons et la traduction de cette tablette et
les réflexions qui précèdent cette traduction.
Cette description de la révolte des Dieux ou des Anges semble avoir été
précédée d’un récit de l’harmonie parfaite qui existait d’abord dans les
Cieux. La guerre entre Michel et le Dragon a beaucoup de rapport avec le
combat de Bel contre le Dragon qu’une tablette chaldéenne raconte[35]. Et il
n’est pas inutile de remarquer que le dragon chaldéen a sept têtes, comme
celui dont parle l’Apocalypse.
Nous venons de dire que les premières lignes (au moins quatre) de la
tablette manquent.
5. «L’Être divin dit trois fois le commencement d’un psaume[36].
6. Le Dieu des saints cantiques, Seigneur de religion et d’adoration,
7. Établit mille chanteurs et musiciens, et institua un chœur
8. Aux chants duquel des multitudes répondaient.....
9. Avec un bruyant cri de mépris, ils interrompirent son saint cantique,
10. Abîmant, confondant, rendant confus son hymne de louange.
11. Le Dieu de la brillante couronne, avec un désir de réunir ses
adhérents,
12. Sonna de la trompette pour éveiller la mort
13. Qui défendit aux dieux rebelles de revenir.
14. Il refusa leur service. Il les éloigna parmi les dieux ses ennemis.
15. A leur place il créa l’humanité.
16. Le premier qui reçut la vie habita seul avec lui.
17. Puisse-t-il leur donner la force pour qu’ils ne négligent pas sa parole,
18. En suivant la voix du Serpent[37], que ses mains ont créé.
19. Et puisse le Dieu de divine (parole) chasser de ses cinq mille ces
mauvais mille
20. Qui, au milieu de son chant céleste, ont crié des blasphèmes mauvais.
21. Le dieu Ashur, qui avait vu la malice de ces Dieux qui avaient
abandonné leur place
22. Pour se révolter, n’alla pas avec eux[38].»
 II

POÉSIE DES PREMIERS SIÈCLES CHRÉTIENS

HYMNE ATTRIBUÉE A SAINT AMBROISE[39]

[Page 88.]

Mysteriorum signifer
Cœlestium, Archangele,
Te supplicantes quæssumus
Ut nos placatus visites.

Ipse cum sanctis Angelis,

Cum Justis, cum Apostolis;
Illustra locum jugiter,
Quo nunc orantes degimus.

Castissimorum omnium
Doctorum ac Pontificum
Pro nobis preces profluas
Devotus offer Domino,

Hostem repellat ut sævum,

Opemque pacis dirigat,
Et nostra simul pectora
Fides perfecta muniat.

Ascendant nostræ protinus

Ad thronum voces gloriæ,
Mentesque nostras erigat
Qui sede splendet fulgidâ.

Hic virtus ejus maneat,

Hic firma flagret charitas,
Hic ad salutis commoda
Suis occurrat famulis.

E f
 Errores omnes auferat,
Vagosque sensus corrigat,
Et dirigat vestigia
Nostra pacis per semitam.

Lucis in arce fulgidâ

Hæc sacra scribat carmina,
Nostraque simul nomina
In Libro vitæ conferat.

III

POÉSIE LATINE DU MOYEN AGE

UNE PROSE D’ADAM DE SAINT-VICTOR[40] (XIIᵉ SIÈCLE)

[Page 203.]

1.

Laus crumpat ex affectu!

Psallat chorus in conspectu
Supernorum civium!
Laus jocunda, laus decora,
Quando laudi concanora
Puritas est cordium.

2.

Michaelem cuncti laudent,

Nec ab hujus se defraudent
Diei lætitiâ.
Felix dies, quâ sanctorum
Recensetur Angelorum
Solemnis victoria.
 3.

Draco vetus exturbatur,

Et Draconis effugatur
Inimica legio.
Exturbatus est turbator,
Et projectus accusator,
A cœli fastigio.

4.

Sub tutelâ Michaelis

Pax in terrâ, pax in cœlis,
Laus et jubilatio.
Cum sit potens hic virtute,
Pro communi stans salute,
Triumphat in prœlio.

5.

Suggestor sceleris
Pulsus à superis,
Per hujus aeris
Oberrat spatia.
Dolis invigilat,
Virus insibilat.
Sed hunc annihilat
Præsens custodia.

6.
Tres distinctæ hierarchiæ
Jugi vacant theoriæ,
Jugique psalterio.
Nec obsistit theoria,
Sive jugis harmonia,
Jugi ministerio.

7.

O quàm miræ charitatis

Est supernæ civitatis
Ter terna distinctio,
Quæ nos amat et tuetur
Ut ex nobis restauretur
Ejus diminutio!

8.

Sicut sunt hominum

Diversæ gratiæ,
Sic erunt ordinum
Distinctæ gloriæ
Justis in præmio.
Solis est alia
Quam lunæ dignitas,
Stellarum varia
Relucet claritas;
Sic resurrectio.

9.
Vetus homo novitati,
Se terrenus puritati
Conformet cœlestium.
Coæqualis his futurus,
Licet nondum plenè purus,
Spe præsumat præmium.

10.

Ut ab ipsis adjuvemur,
Hos devotè veneremur,
Instantes obsequio.
Deo nos conciliat
Angelisque sociat
Sincera devotio.

11.

De secretis reticentes
Interim cœlestibus,
Erigamus puras mentes
In cœlum cum manibus,

12.

Ut superna nos dignetur

Cohæredes curia,
Et divina collaudetur
Ab utrisque gratia!

13.
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