Chapter 7 First Seminar Series: Reciprocity and Retribution

The study of the morality/ethics of war takes three primary forms. Normative theorists discuss and seek to identify the morally permissible basis for the resort to war, and the use of force within war. Interlinked with this is the study of traditions of just war, a form of intellectual history that is closely entwined with work on just war theory. Lastly, there are a lot of people who study the ethics of war for the purposes of improving military professionalism.

We’re going to be doing something a little different.

This year’s seminar series centres upon the role of retribution in reciprocity. We typically find discussion of reciprocity in altruistic terms, whereas here we will focus primarily upon the reverse: reciprocity generated by the threat or fear of retribution. The actions and activities covered in this seminar series are, by and large, both illegal under current international law, as well as generally held to be immoral by just war theorists.

Why do this? Well, one reason is to question assumptions or narratives at the centre of just war theory itself. One assumption is that there are a minimal set of moral rules or ethical attitudes that appear in different cultures across history that govern the conduct of war. Just as most societies in most places have some set of rules against murder, the criteria of the just war tradition pop up all over the place. The problem is, notions of retribution are prevalent throughout history, both in theory and practice.

There are two key texts for this seminar, Helen Frowe’s (2015) The Ethics of War and Peace: An Introduction and Alec Walen’s (2016) overview of Retributive Justice. The point at which we’ll be focusing upon chapters in Frowe’s book are indicated in the reading list, but it is a good idea to read both in full as soon as possible.

7.1 The Morality of Reciprocity

In this session we will discuss the grounding of reciprocity in morality, that is, how do just war theorists explain the moral grounding of reciprocity and cooperation in war? Why, for example, do people take prisoners, or spare non-combatants? To ground the discussion, we will be discussing the classic example of Henry V’s order to kill French prisoners taken during the battle of Agincourt. In particular, we will discuss the difference between the contemporaneous reasons to take prisoners, and the way in which we understand the obligation to take prisoners in the present.

  • Discussion Questions:
    • Does what we call ‘reciprocity’ rely upon shared agreement, or individual obligation?
    • How should we judge Henry V’s order to kill prisoners at Agincourt?
  • Readings:

7.2 Reciprocity and Retribution

Contemporary attitudes towards justice in war are conditioned by the centrality of self-defence in analyses of everything from inter-personal violence to international armed conflict. Most moral theories make space for the use of violence to defend oneself, or innocents,23 Though not all, see pacifism and individual or collective self-defence is one of the sole reasons for states to use force under international law.24 Look it up in the UN Charter And yet opinions about retaliatory violence are often far broader than that acceptable to academic discussion. In this seminar we will discuss the ethics of retaliation and punishment. Is it always wrong? Can the threat of punishment-in-kind ever be good? What, if any, classes of retaliation might we excuse? We’ll look at this in practical terms via the examination of nuclear deterrence, and the arguments of those who consider the “right” thing to do in some circumstances is to threaten population centres with annihilation.

  • Discussion Questions:
    • Is cooperation possible without the possibility of retribution or punishment?
    • Do objections to retributive justice make sense in war?
  • Readings:
    • Frowe, Helen. The Ethics of War and Peace: An Introduction. Routledge, (2015). Chapter 1
    • Walen, Alec. “Retributive Justice.” In The Stanford Encyclopedia of Philosophy, edited by Edward N. Zalta, Winter (2016). https://plato.stanford.edu/archives/win2016/entries/justice-retributive/; Metaphysics Research Lab, Stanford University, 2016.
    • Greene, Joshua David. Moral Tribes: Emotion, Reason, and the Gap Between Us and Them. Penguin, (2014). Chapter 2

7.3 Solving The Tragedy of Common Sense Morality With Violence

Here we address a key problem that just war theory attempts to solve: how can communities with differing, or even incompatible, sets of moral values co-operate? We’ll discuss Joshua Greene’s suggestion that deep pragmatism might provide a basis for inter-social morality, and compare it to arguments about the relationship between war and self defence found in Helen Frowe’s book.

  • Discussion Questions:
    • Is just war theory a description of an unstable metamorality or something else?
    • Can the ethics of self defence be completely separated from retribution?
  • Readings:
    • Greene, Joshua David. Moral Tribes: Emotion, Reason, and the Gap Between Us and Them. Penguin, (2014). Chapter 9
    • Frowe, Helen. The Ethics of War and Peace: An Introduction. Routledge, (2015). Chapter 2

7.4 Retaliation: Justice as Evenness

This week we will be looking at the idea of retribution as a cause of war.25 More precisely, why retributive talk is usually excluded from discussions about just cause William Miller’s examination of the role the punishment plays in producing social cohesion.

  • Discussion Questions:
    • Is a war for retribution more, or less, justifiable than a war for deterrence? Why?
    • Why does the relationship between power and uncertainty differ in Lex Talionis and Fricker’s Epistemic Injustice?
  • Readings:
    • Fricker, Miranda. Epistemic Injustice: Power and the Ethics of Knowing. Oxford University Press, (2007). Chapter 7
    • Frowe, Helen. The Ethics of War and Peace: An Introduction. Routledge, (2015). Chapter 3
    • Miller, William Ian. Eye for an Eye. Cambridge University Press, (2005). Chapter 2

7.5 What Punishment is Due?

Contemporary discussions of justice in war tend to skip over the fact of perceived unevenness, or inequality, between persons both in the past and present. It allows us to miss, almost entirely, the role that slavery and enslavement played in many conflicts over history. In this class we’ll be discussing a rather interesting case: the post-conflict slaughter of Europeans in Haiti during the war for independence.

  • Discussion Questions:
    • Does retribution differ from revenge in both theory and practice?
    • What do former slaves owe to those who might re-enslave them?
  • Readings:
    • Girard, Philippe R. “Caribbean Genocide: Racial War in Haiti, 1802–4.” Patterns of Prejudice 39, no. 2 (2005): 138–61. https://doi.org/10.1080/00313220500106196.
    • The Haitian Declaration of Independence, available here
    • Frowe, Helen. The Ethics of War and Peace: An Introduction. Routledge, (2015). Chapter 4

7.6 Should Leaders Be Spared?

Just war theory is odd, in the sense that it can authorise the resort to war that kills hundred of thousands of people, but things like, say, murdering a bellicose political leader in their sleep to avert a conflict is definitely prohibited. In this seminar we’ll discuss the asymmetries of punishment inherent in morality of war. Why is it, for example, that the politicians who take a country to war are non-permissible targets, yet those who serve in the military, and have no say in the resort to war, usually are? At face value, this asymmetry seems fundamentally unfair, but could such asymmetry promote cooperation between competing political elites? Or prevent the escalation of conflicts? As part of this seminar, we’ll discuss ‘leadership decapitation’ and the different framings of killing terrorist leaders, and Heads of State.

  • Discussion Questions:
    • Does anyone deserve to die in war?
    • Should political leaders be permissible targets?
  • Readings:
    • Frowe, Helen. The Ethics of War and Peace: An Introduction. Routledge, (2015). Chapters 5 & 6
    • Wingfield, Thomas C. “Taking Aim at Regime Elites: Assassination, Tyrannicide, and the Clancy Doctrine.” Maryland Journal of International Law & Trade 22 (1998): 287–317.

7.7 Sherman’s March to the Sea

A key disagreement between traditionalist and revisionist theories of just war is whether protection for non-combatants should be absolute, or whether some classes of non-combatants are liable to attack for enabling the continuation of war. I think a key area of interest in this regard is the difference between the notion of “liability to attack” and “spared from punishment.”26 NB: This is not the usual framing of this in just war theory! In this seminar we will discuss this difference, and how to frame Sherman’s decision during the American Civil War to lay waste to large tracts of the South in order to speed the end of the war.

  • Discussion Questions:
    • Which account of non-combatant immunity, if any, do you think is right? Why?
    • Was Sherman’s march to the sea an act of retribution or necessity?
  • Readings:
    • Frowe, Helen. The Ethics of War and Peace: An Introduction. Routledge, (2015). Chapters 7 & 8
    • Neely, Mark E. “Was the Civil War a Total War?” Civil War History 37, no. 1 (1991): 5–28. https://doi.org/10.1353/cwh.1991.0017.

7.8 Reprisals

Reprisals, or the killing of civilians and prisoners of war, are now expressly forbidden, but for a long time they served as an important deterrent to breaking the rules of war. In this seminar, we’ll discuss the justifications for reprisals that have been offered, and the degree to which those justifications no longer hold true. We’ll also discuss a principle problem faced by contemporary commanders - how can one persuade an opponent to abide by the rules of war during a conflict when one lacks any lawful means of inflicting punishment?

  • Discussion Questions:
    • Is there ever a justification for retribution against prisoners of war?
    • How does just war theory account for the fact that prisoners of war are “mutual hostages”?
  • Readings:
    • MacKenzie, S. P. “The Treatment of Prisoners of War in World War II.” The Journal of Modern History 66, no. 3 (1994): 487–520. http://www.jstor.org/stable/2124482.
    • Timmons, Mark. Moral Theory: An Introduction. Second Ed. Rowman & Littlefield, (2013). Chapter 4
    • Zarusky, Jürgen. “‘That Is Not the American Way of Fighting:’ The Shooting of Captured SS-Men During the Liberation of Dachau.” In Dachau and the Nazi Terror II: 1933–1945 Studies and Reports, edited by Wolfgang Benz and Barbara Distel, 133–60. Dachau, (2002).

7.9 Revenge

The possibility of revenge opens up the prospect of inevitable punishment or harm over time, even across generations. In this seminar we’ll address the temporal scope of punishment, and how this might help or hinder attempts to generate cooperation. In particular, we’ll likely discuss feuds, and cultures that feature feuding as an accepted, or required, practice. The case study for this week will be Israel’s targeting of members of Black September after their execution of Israeli athletes at the Munich Olympics.

  • Discussion Questions:
    • Is the utility of revenge a contradiction in terms?
    • Are Israel’s operations against Black September after the Munich Olympics best classed as revenge, retribution, or self-defence? Why?
  • Readings:
    • Bergman, Ronen. Rise and Kill First: The Secret History of Israel’s Targeted Assassinations. Random House, (2018). Chapter 10
    • Frowe, Helen. The Ethics of War and Peace: An Introduction. Routledge, (2015). Chapter 9

7.10 Do ISIS Deserve Quarter?

In this seminar we will look at an extreme case - ISIS’s conduct against civilians in Iraq and Syria - and the question of mercy. Given an opponent that is happy to slaughter, rape, and enslave civilians, alongside committing genocide and a host of other war crimes/crimes against humanity, do they deserve mercy, if so, why? We will be looking at how virtue ethics might provide an answer to these questions.

  • Discussion Questions:
    • What use is virtue ethics to just war theory?
    • Do ISIS fighters deserve mercy? What of their support networks?
  • Readings:
    • Timmons, Mark. Moral Theory: An Introduction. Second Ed. Rowman & Littlefield, (2013). Chapter 10
    • Frowe, Helen. The Ethics of War and Peace: An Introduction. Routledge, (2015). Chapter 10

7.11 Justice and Escalation

In this last seminar in the series, we’ll discuss a wider issue with the morality of war, namely the propensity of morals and justice to exacerbate conflict rather than limit or constrain it. After all, one of the key criticisms of retribution is not only that it is wrong in and of itself, but that it is also counter-productive. We will therefore finish off the seminar series by looking at the relationship between morality and the escalation of conflicts.

  • Discussion Questions:
    • Does generalist morality lead us into holy wars?
    • What are the best criticisms of retributive ethics?
  • Readings:
    • Geis, Anna, and Carmen Wunderlich. “The Good, the Bad, and the Ugly: Comparing the Notions of ‘Rogue’ and ‘Evil’ in International Politics.” International Politics 51, no. 4 (2014): 458–74. https://doi.org/10.1057/ip.2014.19.
    • Frowe, Helen. The Ethics of War and Peace: An Introduction. Routledge, (2015). Chapter 12
    • Timmons, Mark. Moral Theory: An Introduction. Second Ed. Rowman & Littlefield, (2013). Chapter 11

References

Bergman, Ronen. 2018. Rise and Kill First: The Secret History of Israel’s Targeted Assassinations. Random House.

Fricker, Miranda. 2007. Epistemic Injustice: Power and the Ethics of Knowing. Oxford University Press.

Frowe, Helen. 2015. The Ethics of War and Peace: An Introduction. Routledge.

Geis, Anna, and Carmen Wunderlich. 2014. “The Good, the Bad, and the Ugly: Comparing the Notions of ‘Rogue’ and ‘Evil’ in International Politics.” International Politics 51 (4):458–74. https://doi.org/10.1057/ip.2014.19.

Girard, Philippe R. 2005. “Caribbean Genocide: Racial War in Haiti, 1802–4.” Patterns of Prejudice 39 (2). Routledge:138–61. https://doi.org/10.1080/00313220500106196.

Greene, Joshua David. 2014. Moral Tribes: Emotion, Reason, and the Gap Between Us and Them. Penguin.

Lazar, Seth. 2017. “Just War Theory: Revisionists Versus Traditionalists.” Annual Review of Political Science 20 (1):37–54. https://doi.org/10.1146/annurev-polisci-060314-112706.

MacKenzie, S. P. 1994. “The Treatment of Prisoners of War in World War Ii.” The Journal of Modern History 66 (3). University of Chicago Press:487–520. http://www.jstor.org/stable/2124482.

Miller, William Ian. 2005. Eye for an Eye. Cambridge University Press.

Neely, Mark E. 1991. “Was the Civil War a Total War?” Civil War History 37 (1). The Kent State University Press:5–28. https://doi.org/10.1353/cwh.1991.0017.

Timmons, Mark. 2013. Moral Theory: An Introduction. Second. Rowman & Littlefield.

Walen, Alec. 2016. “Retributive Justice.” In The Stanford Encyclopedia of Philosophy, edited by Edward N. Zalta, Winter 2016. https://plato.stanford.edu/archives/win2016/entries/justice-retributive/; Metaphysics Research Lab, Stanford University.

Walzer, Michael. 2015. Just and Unjust Wars: A Moral Argument with Historical Illustrations. Fifth. Basic Books.

Wingfield, Thomas C. 1998. “Taking Aim at Regime Elites: Assassination, Tyrannicide, and the Clancy Doctrine.” Maryland Journal of International Law & Trade 22:287–317.

Zarusky, Jürgen. 2002. “’That Is Not the American Way of Fighting:’ The Shooting of Captured Ss-Men During the Liberation of Dachau.” In Dachau and the Nazi Terror Ii: 1933–1945 Studies and Reports, edited by Wolfgang Benz and Barbara Distel, 133–60. Dachau.