It's going to be my business today. Is that some of it very, very tough because actually, really, it's from the other place.
But he's changed the spots and gone down business mainly. He is associate professor of philosophy and public policy at the School of Government.
He was fully educated at Cambridge in both his undergraduate degree, master's and doctorate.
He then took a rather unusual step of joining the Royal Marine Commandos for a period of
five years were amongst the first of all was Northern Ireland and ended up in Afghanistan.
He was also 82 general. So what from some people here who know him so well that they're very sore also in Iraq and not surprisingly,
obviously in Helmand, not Khalistan, where he was an ops officer.
And some of he's now returned to his academic life and his sea research model and lost a lot of both in different programs,
including a doctoral program at that school of government. And your subject is the baroness's of unconventional force.
Tom Petty Great.
Well, thank you very much, Rob, for that very generous introduction.
And I'll assume that the centre of gravity for the audience here is non philosophical.
So I'm a philosopher by training, but I'm assuming that the majority people here are from a diversity of disciplines,
history, international relations, strategic studies and so forth.
So in order to help that, what I've got is a handout, which hopefully everyone's got,
and all the key points that I'll make will be on there and I'll talk, if I may, for about 30 minutes.
That should be about 20 minutes for questions and discussion afterwards.
Okay. So let's, let's just dive into the topic. And so my interest is in unconventional forms of one of my interest of interest in study.
And I mean by this is the use of force outside of either war time, war by police for internal security.
So we've got very established bodies of theory for thinking about the ethical questions for the use of force throws up in these two contexts.
So the first one, we've got this big body of work known in general terms as just war theory,
and there's debates and discussions about the requirements, just war theory on that.
That's been a question that's a very, very longstanding I mean,
to many or at least goes back to August and earlier we did there's not so much work on police ethics, but you can find it.
But what there is, is a huge amount of discussion about foundational questions with political authority.
And right at the heart of political authority is that monopoly on the use of violence that the state is supposed to legitimately enjoy.
What we don't have is any really serious theory,
moral theory about what the conditions are on which force may be permissible used outside these two contexts.
Right. But it's quite important that we get this body theory because you only need to be moderately attentive to the world over the last ten, 15,
20 years or so to see there's an increasing amount of force being used by governments of every stripe that are not being declared wars.
I mean, actually declared wars are the exception rather than the rule. Correct.
And saying that those who are better on the empirical side, I don't think war was even declared in March in 2003 against Iraq.
I think it was straight out. So my question today is, what are the moral limits on the use of unconventional force?
And this is not a detective story. So I'm going to tell you the answer now.
And the answer that I'm going to defend this is roughly and then in a slogan form, is that spies and special forces played by Big Boys Rules.
So that's a kind of English euphemism for basically English as a second language.
The kind of sense is, okay, so another euphemism when you're playing ice hockey, I'm in the fight, you know, it's getting serious.
When the gloves are off, there's a kind of sense, right, that both sides have adopted different rules that are going to work.
And that's the basic thought that I'm wanting to defend today. Okay.
So let me pass quite quickly over the nature of unconventional force.
So there are two purposes to run the structure.
You talk about the nature. I'm going to talk about a a natural way of thinking that you might be drawn to just think about this.
I'm going to say walking. That's false. And then I'm going to propose an alternative in this place.
Okay. So what's the nature of unconventional force? There are two purposes. Firstly, to gain intelligence in the pursuit of national security.
And this may take a variety of forms. So there's all the. SIGINT means O.S., etc., etc., which we're used to.
And it may include the the non-consensual access to property.
So physical inside. So if you stick a memory stick in someone's computer and I haven't given you permission to do so,
you are non-consensual accessing their property equally.
If you pick someone's lock, you're doing the same.
You may also states also gain access to this information through interrogation and at the extreme, through torture.
And I'm making no value judgements here. I'm just reporting what goes on.
So another purpose that unconventional force forces used for which I think has been growing in prominence,
is the interdiction and disruption of enemies.
And this could take a variety of forms. So at the soft end, sowing false information, blackmail or bribery,
moving up like sabotage or destruction of property, and then at the kind of the shops and assassinations,
targeted killings, rendition and detention and just to kind of hone in there to folk kind of appraisal,
there are two points at which these kinds of activities could be appraised.
So one is the kind of force that's employed.
And the second is the target against whom the force is employed.
So that's just the structure. Okay. So that's this is all just the way of set up.
I'm now going to turn to a natural way of thinking.
So you might think parallel to the question, what are the moral limits on use of unconventional force?
And you might say, well, look, what we should do is we should look at just war theory, which is very dependent.
And we should take the principles from just war theory, and we should see how they apply by analogy in the context of unconventional force.
So just war theory has two central planks.
That's what's called use ad bellum, the justice of going to war and then use in that mode.
So the justice of what you can do when you're fighting. And very roughly the thought is politicians are responsible for use activity.
Whether or not it was right to go to war in 2003, what's something that Tony Blair has to answer for?
That's the predominant thought. And then soldiers are responsible for use in Bello.
They shouldn't target hospitals and so forth.
And there's a variety of principles that are proposed under these two heads and principles like proportionality,
principles like necessity, principles like last resort, like lawful authority and public declaration of war.
These would be standard principles in the just war tradition. Now there is a we're fortunate that a lot of the people who work in the agencies which
conduct unconventional force are quite reflective individuals and are sometimes troubled,
at least wanting to question what the moral basis of their work is about.
And so there's a growing body of discussion of literature by these reflective practitioners,
and this tends to be the approach that most of these people take.
And as a case study of this, David Ammons, who's former head of she says.
Q Is that correct? He's got a book that came out recently in which he takes exactly this approach, an analogical approach to just war theory.
And I cite some other examples of that. Okay.
Now there's something that's wrong about this and there's something that's right about this.
So what's wrong about it is that ideological arguments on just about the worst form of philosophical argument that you can get.
So whenever anyone proposes an analogy, we all have to sit there scratching our heads and thinking,
Well, okay, I can see that in fact respect as an analogy.
But in that respect, there isn't an analogy and it's it's just like chasing a bar of soap around the ball.
It just kind of slips and go. And you can never actually pin down what the point of disagreement is.
So as a method, it's a stunningly bad way of going about it.
There's something that's right about it, however, and this is that this approach, the logical approach, is sort of almost unwittingly.
I mean, I don't mean this pejoratively, but unwittingly stumbles upon a way of thinking about the ethics of force that
has very considerable currency in contemporary philosophical discussion.
And this is what's called reductive ism. So it's a particular position about the ethics of force and reductionism.
On the for a says the following ethical permissions and prohibitions on the use of force derives solely.
Individuals are permitted and prohibited to do to each other.
Okay. So here's the implication.
We want to think about the rights and wrongs of the use of force in war.
What we need to do is imagine a case. You know, Robin,
I have come across each other in the street and you can construct the cases according to different facts of the matter about who's done what.
And then we think about what we're individually entitled to do to each other.
And once you've got that, you then simply have to extrapolate from a dyadic personal person interaction to a group versus group interaction.
You've got to work out on the basis of the rights that individuals hold to the rights that groups might hold by transfer, but not by analogy.
And the implication that comes from this is that the morality of force is insensitive to social context.
So it doesn't matter whether a war is declared or not,
because that's irrelevant to the rights and wrongs that have been conducted between us, for instance.
All that matters is who's done what and what the rights and wrongs are that arise from it.
And and as a result, there's no such thing as the ethics of war or the ethics of the police.
There's just the ethics of force. And there's just these different contexts in which force is used.
And I gave a quote there under Fauci Force, Geoff McManus has just moved.
It's a very good thing for Oxford. He's a he's not a professor of moral philosophy here.
And he's probably the most prominent reductionist that's writing today.
And he says this The conditions of war change, nothing at all.
They merely make it more difficult to ascertain certain facts.
So you get that the conditions of war change nothing at all. They merely make it more difficult to ascertain certain facts.
So whether or not we're right to use force, totally irrelevant whether special forces, green troops,
people in police, uniform, etc., etc. the rules that govern use of force identical in every single context.
Now, I disagree with this and I'm going to try and explain why.
What I can't do in this relatively short discussion is give you a full and conclusive argument,
in part because it's just a very big and very light debate.
And in part, I'm still working it out myself.
It's so it's a kind of longer term project.
But what I want to do is I want to put to a discussion two sides of discussion and then indicate why I endorse the contrary.
Okay. So I think so I endorse what what I this is my term, what I call exceptionalism, about the use of force.
And this claims that the ethics of force can be and indeed is sensitive to the social context in which it occurs.
And therefore, the principles of just war theory have a different structure of justification
to that which derive from interactions between individuals qua individuals.
As insofar as we are individual autonomous agents act in the social context within which that individual's action becomes significant.
I'm going to try to explain why that's the case. So firstly.
MCMAHON So this is the disagreement that I'm not going to explore. So McMahon distinguishes what he calls the deep morality war from the laws of war.
So the Geneva Conventions are laws of war. The UN charter instructions about conditions under which war is just one of the would be laws of war.
And. McMahon Contrast that with the morality, of course.
I think there's moral facts which determine the rights and wrongs of war before it gets to law.
Now, what's the point of the divergence? So the latter the laws of war have to be formulated, he says,
to take account of the likely effects of its promulgation of its institutionalisation and its enforcement.
So an example might be and something like that.
So I think I think the example, if I remember I mean, if he gives us one, right? So you might think that perpetrators of rape deserve that.
You think that capital punishment is permissible. That's plausibly one of the crimes for which that punishment is put is permissible.
But you might think that having mass punishment on the statute books would deter certain kinds of reporting.
And you may value the reporting of rapes over and above the immediate justice that perpetrators of rape deserve.
And therefore, you might have a law which specified a different punishment to that which morality requires,
that my views of the extent of other kinds of examples where the incentive structure effect of having a law on the
books maybe such that it changes behaviour and we want to take that into account in the laws that we can act.
Okay. Now McMahon's view is that when you've got the morality of law and the laws of war where these come apart,
basically you should follow it more restrictive. So sometimes morality may say that you're allowed to do something, but the law says you not.
I mean, you should follow the law. So McMahon, for instance, has the view that if you are a significant causal contributor to the cause of a war,
you are a legitimate target for those prosecution.
So in particular terms, if you're a politician will prosecute, such as Tony Blair,
he thinks that you are legitimate, morally speaking, you're legitimate target for attack.
As it happens, we have a convention, a very, very robust convention,
which says people in uniform are allowed to be attacked, people not to shoot politicians, they're not legitimate targets.
So in that case, that would be an instance where morality permits something.
That law forbids it and only his you should do what law requires.
And that's usually equally you have the converse.
You have something where the law permits something, but morality forbids it and you should follow prohibition, the grounds he gives.
And in the tiebreaker case where the law says you should do something about it,
he says you shouldn't do something, but you should follow morality in this situation.
So that's McMahon's view now.
Okay. What's going on here? Because I think this is my suggestion.
I think you can understand his inquiry as one into the morality force in the state of nature.
So I'm sure you prefer you say to nature of this conflict, you imagine a world in which the statement exists.
It's just people running around the earth getting on with activities. What would be the ethics of force in that situation?
And because he's been a very rich notion of the rights that people hold in that situation,
it's the state of nature that John Locke espouses from one that Thomas Hobbes.
Spouses. Okay. But this is really puzzling, right?
Because we don't live in the state of nature.
I mean, we we explicitly live under the state and certainly domestic categories.
That's very definitely the case. And there are very good reasons why we don't live in the state of nature, because on any plausible construal,
governments have got to be really, really bad in order for life to be worse under the government than it would be in the States.
I mean, we institute government's sort of basic insight on the contract, our intrusion.
We institute governance because life goes better. And it's not just that life goes better in some kind of, oh, it's nice for us,
but the effects of life going better are so much more serious that if you're going to be any kind of moral obligation at all,
there's going to be moral obligation for each of us.
There's a natural duty of justice for each of us to play our part in ensuring that we
bring about a condition where we live under the state rather than living roughly,
roughly benign state rather than living in the state of nature.
As a Henry said, this is a very, um, uh, incestuous city, too strong.
It's a very low price set of contributors.
Henry she also a professor emeritus here in Oxford, disagree.
At the time of writing, they were different parts of the world. But so.
But they're not now. And so, Henry, she replies to McMahan on this, and he says, quote, On the handout,
We do not have to choose between the what the morally best laws permit and require and what morality permits and requires.
Because morality requires that where we need laws, we formulate the best laws and then follow them where they apply.
We can take the morally best action by being the morally best law where we ought to follow the law.
We may, of course, have to choose between the actual laws and what morality requires the law to be.
But that is because. And when the actual laws are not best laws.
So do you see the basic claim that she's making there in contrast to the man,
which is that morality enjoins us and indeed requires us to obey the law.
So there's going to be a caveat.
You know, under certain conditions, the laws can be so corrupt and so unjust, Nazi Germany, etc. The wrong to your conscience defy the law.
But that's a kind of that's a particular question about scope of political authority, absent that dealing with legitimate laws.
Morality requires us to obey the law.
And this this just seems to me, obviously the right way to go on in terms of this particular debate and one sort of supporting
consideration one way see why this is the case would be to imagine what denying it would require.
So if there's no moral requirement to obey the law, then law has purely pragmatic.
You know, it ought to have only a pragmatic, incentive based effect on our conduct.
But basically, no one thinks apart from the absolutely criminally psychopathic, no one thinks that the law is a purely pragmatic mechanism.
Nearly everyone thinks that the law requires us to obey. It makes a moral claim on our conduct.
And she's position is I mean, this is sort of philosophical.
I'm dealing with philosophical interlocutors here. He's not committed to very much substantial moral theory here.
So he's he's committed only to the claim.
The fundamental moral considerations include more than dessert relations questions of what one person deserves or another person deserves,
which is the case on McMahon's view. The desert does not have something significant, so it doesn't always take primary importance.
And that law derives part of its moral force from such other considerations.
That just seems to seem to me to be truisms and worthy of endorsement.
Okay, so I've got two final planks in the argument and then I'm going to apply this to conventional force.
So I want to extend his position here.
More doesn't have its force because of some kind of x niccolo status.
The law has law has its moral force because of what it makes available, namely coordination of people's actions.
It's not only law that provides this coordinating function.
In particular, conventions provide for some coordination function.
So a really nice, easy example of convention. It's it's whether we drive on the right or the left on the.
So it doesn't matter whether we draw the line for that.
But it does matter for all of us that we come up with a decision, a regularity behaviours, whether it's the Mac or drunken driving.
And given that we drive in the aftermath,
every single one of us has compelling interest in also following the regularity in this case in Britain driving on the left.
And coordination is pure, pure can.
Pensions in that sense structure quite a few of our interactions and it seems as well like you can have mixed conventions where there's,
there's both mutual benefits from having a regulatory behaviour which people follow.
But the mixed nature derives from the fact that there's sometimes strategic advantage to be had from defecting from those conventions.
Nonetheless, all of us would prefer to live in. This is the structure of the free ride for all those who prefer to live in a
world where the regulatory behaviour exists than one in which it's not followed.
Conventions exist in war. So I want to move this slightly more specifically.
So Thomas Schelling has this great observation, which is exactly at the heart of it.
If war to the finish has become inevitable, there's nothing left but pure conflict.
But if there's any possibility of avoiding a mutually damaging war or of conducting warfare in a way that minimises damage or coercing an adversary
by threatening war rather than waiting is the possibility of mutual accommodation is as important and dramatic as the elements of conflict.
Okay, let me give a quite a dramatic example from war. So practices of surrender have been very, very variable through history.
At the moment, the law that's on the books is that if a soldier puts their hands up,
indicates there's not surrender, a soldier is obliged to accept that at any point in time,
not that long ago, that 400 years ago, the practice in European early on, that was very different in particular procedures.
So the practice in sieges, was that a surrender?
There was an obligation on the attacker, the procedure to discuss terms with the defender of a city up until a point at which the walls were breached,
at the point at which the walls were breached, there is no obligation. They can if they want to.
There's no obligation to accept someone's surrender. So the defender,
in continuing to defend the city beyond the point at which the walls are breached because the liability of no longer having to privilege surrender.
Okay, that's quite dramatic.
So what it means is that at 64 is a notoriously bloody business and you get a lot of city sacks when you look at the source of the people involved,
very keen to defend this practice, not because they desire to kill people afterwards,
but because they saw that the costs involved for sending the attackers up the ramparts was so high on lack of casualties
that there was there was good reason to have an incentive for the defenders to surrender before the cost was involved.
So the convention here was impartial between sides. Everyone could apply.
It's completely transparent. Everyone knows that. That's the point at which surrender is ceases to become possible.
And it's excitatory before the interaction happens.
It's in everyone, in everyone's interest that that happens. Because the point is more if you know that if they do attack,
of course you're going to think on about whether or not you surrender in good time and
more surrenders over will occur as a result of that convention being in place now.
So some of us have called this paper psychopathic. I went to one of my colleagues and you'll begin to see where I disagree with the charge.
But you can see when the time comes. Genghis Khan's incentive structure had a similar one, though,
so he also imposed the same conditions on cities of surrender before hostilities had had taken place.
And in fact, slightly more close to home, British paratroopers in the Falklands imposed a very similar sort of practice point of no surrender.
It was 100 yards out.
So beyond that point, the exposure to the tactical system so that you could have light of you lost the privilege of surrender after that point.
And you can see how different conflicts can have different points at which it becomes pertinent.
And there's reason to say surrender doesn't become achievable beyond this point.
Now, my point is where coordination is achieved by convention,
the regularity of behaviour specifies the provisions and permissions that exist in that context.
So where that reckless behaviour exists, you could be prohibited or permitted from carrying out certain actions.
In accordance with that regulation, the social context becomes deeply morally significant.
That's my argument. Okay, here's here's the second plank.
And so it's a big caveat what I call category city.
So it's not conventions all the way down. Some actions, in my view, are categorically prohibited.
So torture so is not an implication of my view that because your enemy is torturing your prisoners, you are entitled to torture of their prisoners.
In response, there are some actions that are just prohibited because of the nature of the intrinsically immoral nature of that action.
And I think this is. Recognised by the distinction between mother in say and mother prohibited.
So something that's wrong in itself and something that's wrong because it's prohibited.
So what I'm trying to get at is unpick the structure of what it is for something to be.
Mother prohibits her to be wrong because it's prohibited.
So it's the prohibition that makes it wrong rather than it being wrong that makes it prohibited.
Okay. So let me just apply this to an unconventional force.
A given exceptionalism about force. Force may be sensitive to social and legal contexts and where regularities of unconventional force exist.
Practitioners should follow those rules. They should follow its prohibitions and its permissions.
And obviously, there's a further column, which I haven't stated.
But if there's an opportunity to set those conventions in a way that's a mutually beneficial, you should also take that opportunity to do so.
Now, category city restricts who is targeted, so I'm afraid I'm going to restrict it.
I'll say I've given us a framework for thinking about things here. I haven't actually given us any specific rules.
Maybe we can talk about that afterwards.
But so I don't know myself what the actual restriction is that derives from this line of thinking on who may be targeted.
That's a big question. We could go into it in discussion.
But I and it's a classic distinguish restrict some kinds of force on on what kinds of force might be.
So I think no torture.
But for instance and the boundaries of property seems to me exactly the kinds of things what property may be destroyed, property may be tempted to.
It is exactly the kind of thing that's affected by these regulations.
PAVIA Where no conventions exist. It seems to me that unconventional force, the ethics of it, is just as per the state of nature.
And I'm just putting it as a placeholder that I don't pretend to say exactly what those requirements are.
But there is the one thing that I would bring out there is quite an interesting and significant
policy implication that comes out from this argument so recurring over the last years.
And the Snowden revelations shows very dramatically whenever there's a revelation
about a particular practice which various intelligence agencies have been involved in,
which people dislike, things shouldn't be taking place.
The usual response to this is to say, we need to have judges overseeing these intelligence agencies.
We can't trust the politicians to do so.
So the accountability needs to be shifted from political accountability to juridical accountability.
And I'm opposed to this, I think. I mean, there's a number of counterarguments for it, but I think one that emerges from this is that.
Conventions exist when when they're common knowledge people need to know about.
So the Commonwealth has been public knowledge just means that everyone involved
in the practice needs to know what it is and it doesn't look at all plausible.
That's the judiciary.
The judiciary will have any sensitivity whatsoever to the informal rules and rules that govern the practice of unconventional force.
And it's by those standards that the practitioners of conventional force should be held accountable, not by standards, for instance.
Not by standards, which are insensitive to the particularities of the use of unconventional force.
Judges don't know what those rules should. Consistent practitioners, therefore, I argue, should be judged by what happens before these rules.
Thank you very much. And certainly to your comments and questions.