Okay. Thanks for the invitation. And some of you might have got it.
A draft of the of the paper. But for those who haven't, I will now give, you know, kind of exposition of of the ideas.
Now, historically, there is there is a there exists a position in just war theory that actually the combatants on the on the unjustified in the war,
at least if they know that they are on the unjustified side of the war,
are not allowed to participate in the war, and cannot just they kill the combatants on the other sides.
This is somehow this is very often actually misinterpreted the history.
Very often you hear people say that the idea of a moral and equality of combatants,
that is the idea that combatants on both the justified and the unjustified
sides are allowed to kill each other in the war is actually the orthodox view.
This is not the Orthodox view at all, but it's it's constantly confused, not only serious in Victoria,
but a couple of other authors explicitly denied that there is such an equality of war.
And by the way, also also state and for reasons unknown to me,
a lot of people think somehow that Grotius is the great founder of the more equality of combatants.
That's that's complete nonsense but nonsense that's widely believed now in recent
times to be the author or who has who has perhaps done most to to provide arguments,
why there is why there is not a more of the equality of combatants.
Geoff McMahon So in the second part of the talks I will explicitly deal with some objections to my position.
Jeff has advanced. Now let me start by, by giving the basics.
So one argument and this this argument has actually also already been advanced in the way by,
by grotius one argument is that there cannot be justified defence against a just or justified attack.
So Jeff McMahan says that since, for example,
a criminal cannot is not allowed to defend himself against the justified attack or defensive, the attack may be of a police officer.
So also, it's not it's not clear why combatants on the unjustified side of a war should be allowed to defend
themselves against the justified to adjust the text of of the of the combatants on the other side.
Now, this this is maybe intuitively quite plausible, as long as we only consider that to involve combatants.
But my argument is that once we consider bystanders, this is not bystanders.
It's not that clear any more at all.
Because also the so-called justified combatants or the combatants on the justified side will in most wars pose unjust threats to innocent bystanders.
For example, the soldiers on the unjustified side might be engaged in the bombing raids against an ammunitions factory,
but the side effect of the attack on the munitions factory would be the so-called collateral damage,
or, as I prefer to say, the concomitant slaughter of innocent bystanders.
So they would actually pose an unjust threat to those innocent bystanders.
And Jeff agrees. He says the the rights of the innocent bystanders would be violated and as given to how he once formulated his position,
it would actually logically follow that then these justified soldiers become liable
to attack because liability to attack consists according to early formulation.
Self-defence consists in moral responsibility for posing an unjust threat, and they would post in an unjust threat.
But he has then later on revised his theory, stating that justification defeats liability.
So he now thinks that if the combatants on the justified side are, you know, except take justified, they cannot be liable to attack.
Just just a side remark. That argument in itself could appear to be a little bit question begging because
make man if he wants to establish an inequality between the combatants,
he must assume already that the combatants on the unjustified collective side rights on the collective,
that wages and unjustified war that the individual combatants cannot be justified.
In waging that war too, for his argument worked.
But this is the kind of what this whole issue is about.
So it seems to be a sort of question begging to assume right away that combatants on the on the unjustified collective side cannot be justified.
It might sound crazy. How can somebody who was fighting on the Indian justified side be justified?
But it's actually not crazy at all.
My my standing example that I give and some people say I should revisit with consideration to Texans, but I will not revise it.
Now, my standard example is, is it supposed to go through the streets of Berlin somewhere?
And there's a group there, a group of neo-Nazis, in the process of bashing some foreigners to death.
Right. And you pass by and you say you cannot do anything.
You see, you cannot do anything about it. If you would personally intervene, all that would happen is you would be killed by the neo-Nazis.
However, there happens to be a group of Texans nearby Texan tourists, and, you know,
they would get the job done so you could go up to them and tell me tell them,
you know, I helped me in saving the innocent bystanders from the bad neo-Nazis and the Texans style, you know, problem.
But, you know, we are Texans. When we engage in violence, it's always excessive.
And second, we won't do it without you, you know, so that, you know, later on complain about our excessive violence from the sidelines.
And so in this and this opportunity, in this location,
all you can do is either do nothing and let the the innocent people be killed by the neo-Nazis or you can join the Texans.
So ever since they would accept to be involved in excessive violence, this collective violence would be unjustified because it's excessive.
Right. But your personal participation would be justified because it's the lesser evil.
So it is. It is quite and I mean, this this is true for a lot of contexts.
It's not just to do with contexts of violence,
but this is just a general rule that participation in an unjustified collective act is not automatically unjustified on the individual level.
Okay.
Now, my my argument has now been, as I say, pointed out that the combatants on the unjustified or on the justified side would pose an unjust threat.
Let me now say a little bit maybe about liability to to attack in in general.
I follow to a certain degree Judy Jarvis Thompson's account to Judy Jarvis Thompson has argued that you become she doesn't use the term liable,
but she says that you can for to your rights not to be attacked by violating the rights of other people.
So if the unjust attack violates the rights of other persons, then he becomes liable to attack.
She, however, thinks also that so-called innocent attackers or innocent threats can be.
I just use a term they'll be liable to attack. An innocent attacker would be somebody who has taken drugs.
Unbeknown to him has taken drugs. And this now, you know, causes a psychotic break or something and therefore use attacking unjustly another person.
And they are already a certain doubt would appear whether somebody who was
not really a responsible actor can actually violate another person's rights.
But still still a stronger doubts would appear if you have a so-called innocent threat like Robert not seeks.
Fame is falling man. There's a falling fed man.
He falls from some cliff and he's about to crash an innocent bystander below and on.
In most jurisdictions in the world, the innocent bystander below would actually be justified in using defensive measures.
For example, if he has some kind of gun, he could vaporise the falling man in order to save his own life.
In most jurisdictions, this would be clearly justified, and most people think that it's also,
from a moral point of view, plausible to think that that is justified.
However, the crux here is that many people think that you can only violate rights by actions you wouldn't say of a falling boulder that he violates,
or that the boulder violates a person's rights. And people then think that you cannot say of a falling man if he's not acting,
but just falling something is happening to the man, actually, that this man violates a person's rights.
And this is where then I part.
I find this criticism quite convincing, actually, just semantically quite convincing.
And he had just. Waste with with Thomas and say that you can not only become liable to attack by violating another person's right,
but also by purpose, by posing an unjust threat to to that person's right.
An unjust threat. Here means that one does not have a right to post the threat.
One is posing. Posing. And the thing that is posing this threat has not been set in motion by someone who had the right to do so.
So the following men does not have a right, you know, to crush the person below which which is pretty much obvious.
If you could just deflect that person that was clearly be allowed.
And in this situation, you have a clash of rights.
What is in my in my view, very often overlooked by by philosophers like Jeff McMahon or also David Roden,
is they say, oh, you cannot just lose the rights by by not doing anything.
You have to do something in order to lose the right, you know. And then they say, oh, the pool falling, man.
He has he hasn't done anything. And therefore he cannot has lost his right to life and is a claim right to self-defence.
But on the other hand, then there is the poor man standing below is forgetting.
This man has also done nothing to lose his right to life or his right to self-defence.
And my view is that in this situation and where you have a clash of rights, of general rights or self-defence,
so to say they cannot coexist anymore as rights, that would be a logical contradiction and they transfer themselves into liberties.
I explain in a second what that is. And liberties can co-exist with each other, to give you an everyday example.
I mean that the terminology I use as a whole, the whole Feldman basically and whole Feld has says coined this terminology.
It is a whole Feldman terminology and hausfeld distinguishes between claim rights.
And unless otherwise stated. When I say right, I always mean claim rights.
So he distinguishes between claim rights on the one hand and liberty rights on the other.
Now, if they have a claim right to do something, that means that other persons have a duty and not to interfere in my exercising this right.
So if I have a claim rights, you know, to to get this glass of water, then other persons are not allowed to interfere in my action.
And if I have a claim, right, to hit another person, for example, to kill another person,
this would imply that this other person is under duty, not not to interfere.
Right. But of course, you can have clearly situations where I am under have a liberty to hit a person wide.
That is means I am not under a duty not to hit a person.
Why the other person still retains her liberty to hit me back or to interfere there.
The common situation would be the example of two boxers.
They don't have claim rights against each other to hit each other because claim rights are not compatible logically, but they have liberties.
So both of them don't violated duty by by hitting the other person.
And they don't violated duty by trying the other person from from keeping them from hitting them.
So liberties are just, just different.
And a couple of people somehow claim that this this is not consistent.
But in my view, this is this is not only consistent, it's actually a analytical truth.
If you apply the terminology of what's the whole felt, which I simply do,
I we can I just wanted to make this clear because sometimes there's a problem that
these distinctions between liberty and claim rights are very often forgotten.
And then people talk about rights and see inconsistencies because they just don't make the distinction between claim rights and liberty rights.
Or sometimes they use the term rights for a claim, right? Then sometimes it's liberty rights and these confusions should be avoided.
Now, how do how do people in a justified war violate the rights of others?
Well, one thing is, of course, I mentioned it already by directly killing innocent bystanders.
And of course, collateral damage is still directly killing.
It would only be indirect. These examples are sometimes given by Tony Goudy.
You could perhaps say an indirect killing is if I bop a drum on that ammunitions factory and then the
bomb makes the wall fall off the ammunition factory and the wall falls on the on an innocent bystander.
That is maybe indirect killing, but dropping a bump on a bump on persons.
And this bump shredding the persons to pieces is certainly a form of direct killing.
Right. So one thing. You can do is killing a person directly, although it might be collaterally,
but that is still direct and you might directly impose also risks on them of being killed in this way.
But this has been pointed out by by Sessler and others, also by Jeff, actually.
And one idea is that not all combatants on the justified sides and by the way,
on the unjustified side either are actually posing threats in this way to innocent bystanders.
A lot of them will at best contribute to posing threats.
And in my view, it's it is important to see that this can be quite sufficient.
Let me give you an example. Outside of the vortex context, let's say the jackal.
You know, this serial, this this famous killer of the novel, The Jackal wants to kill an innocent bystander.
And there's Alex somewhere who has to march there, the victim or the target for the Jackal, so that the Knowles, whom he has to kill.
And he's doing that in that case. You know, jurisdictions in most Western countries, actually, so far as I know,
in all Western countries, would say that this is participation in a crime.
So the person who marks the target for the Jackal would participate in in this crime of killing the innocent bystander.
However, it is not necessary. That is, he causally contributes.
So even for example, if it's not, if actually, you know, there was no causal necessity for him to put this mark and even actually,
if the Jackal might not even have seen this mark, the the accomplice put on the target, he would still be considered as a as a participant.
You see this from bank robberies. You know, if somebody is standing outside and and watching out for the police coming,
even if that in the end has not played a causal role and the robbery might have gone along anyway,
he would still be held liable in most jurisdictions as somebody who participated in the bank robbery.
So so this is just to deflate Sessler and others very that and that just too few people would be actually liable to attack.
I think that's not necessary if you take accomplices into account.
This is participation. And other thing is what I call a culpable contribution.
For example, if somebody full well knowing that the Jackal wants to kill an innocent person sells the Jackal a weapon to do it,
that would be in most jurisdictions clearly a culpable contribution.
It would gnosis not necessarily be considered participation.
That depends a little bit on on the jurisdictions, but I make this distinction between participation and culpable contribution.
And then you have, you know, innocent contribution.
And two examples would be a, you know, a woman, a restaurant owner,
a cook full well knowing that the Jekyll is out to kill somebody cooks a meal for the Jekyll.
She has not the possibility to call the police to anything. All she's doing is cooking him a meal and he goes out and kill somebody.
Now she would not be liable. In Western you were addictions as in participation of a crime.
And if somebody lets this, the son of this of this woman sold the ammunition without knowing that the Jekyll is somebody who uses to kill innocent
person or that there's a high probability that he might do so would also be innocent in Western jurisdictions.
And you can you can transform this or you can apply this distinction reasonably well to the war situation.
You have people who directly kill innocent persons.
Then you have people who participate in the in the collective efforts in a collective war effort that kills innocent persons by,
for example, maintaining the weaponry. This would be the analogy maybe of of of marking the target for the jackal.
And then you have persons who culpably contribute by providing the weaponry for while knowing what will happen with it.
And you have then persons who are not responsible at all because they just, you know, provide food for the army.
There might be some subsidy about Cecil Farmer, for example,
would say that there are ways of of providing food to the army that might make them liable to attack.
And I actually agree. But in my view, there are also ways of providing food for the army that would not make them liable to attack.
And that can be people, you know,
like the Guatemala taking that's my example there got to my taking school product some fabric some fabric some working in the fabric when.
The factory who produces screws for well knowing that they might be used.
There's a certain possibility that there might be use.
Well, Gaddafi is dead now, but at that time Gaddafi was making some might be used by Gadhafi's troops to fight,
you know, the revolution and unmake man's account.
And it's very difficult for him to get out of this.
It seems on McMahon's account, it would be this cruel producer would be liable to attack if there is a chance that by attacking him,
you might you know, you might further the just causes, let's say, of the revolution.
Right. But on my account, which I think is more plausible, intuitively more plausible,
this person is not yet liable to attack the that the distances is just too big.
Okay. This is this is the basic. This is a basic outline maybe of liability to attack.
And note that I have not really tried to give specific criteria.
What distinguishes participation from culpable contribution?
I think this is really very difficult, but it's also not necessarily done in case law.
So I don't think you need for everything clear criteria.
It seems to be impossible, for example, to give you a definition or to give you clear criteria.
How do I distinguish green from reds? You just cannot write a definition, but most people can distinguish green from red.
And as long as they do so, then rules that rely on this distinction can work.
Like, you know, you are allowed to walk if it's green and you have to stand still if it reds.
I don't have to define it as long as people know the difference. That's that's good enough.
Of course, I don't deny that there are grey zones where I don't exactly know if it's still red or is it's already green
or something like it's still participation or is it's already something less like capital contribution.
But I think the distinctions work well enough without having, you know, completely clear cut criteria.
Okay. Now, Jeff's advanced several objections to this, and I will not actually go through through all these objections.
His most important objection is that justification defeats liability rights.
And I had to early on pointed out that that seems to me to be an ad hoc claim.
Why does justification defeat liability? And then Jeff said, Well, it does so in criminal law.
Right. So if you're justified, then you are not liable to punishment.
That's true. But it's also beside the point, which Jeff actually acknowledges, because that's not what we are talking about.
We are not talking about liability to punishment, but liability to defensive attack.
And it's clearly and Jeff admits this now, it's clearly not the case that in the law, justification generally defeats liability.
For example, he now says that, for example,
the tactical bomba who bombs the ammunition factories full well knowing that this will also kill innocent bystanders,
is allowed to do this, allowed to kill the innocent bystanders and a necessity defence rights and necessity defence as you have in law.
But necessity defences in law are the paradigm example for justifications.
The necessity defence is in most jurisdictions have justification.
They are parody time example for justification that does not defeat liability.
This is shown by the fact that, for example, somebody wears a necessity defence, for example, to break in somebody else's house.
Maybe he's, he's dying, you see, he's about to have a heart attack and he knows in this other person's health, this,
that's a medicine that can save him, then he would in many restrictions have a necessity defence to break in.
So he would be justified under the law to do this and he would not be punished.
However, he would be still liable to pay the person whose right he has violated, namely the owner of the house compensation.
So he's still liable to do that. In light of this, Jeff has then backed off and claimed, well, okay,
I admit justification in law does not defeat liability, but justification does defeat liability to defensive attack.
Right. But that's now completely ad hoc.
You know, he could have claimed or my my former argument was not a talk because I had the general argument that justification defeats liability.
And I point out, no, it doesn't. And then Jeff says, well, but at least it does in the case of liability to defence if attacked by defensive killing.
But that's of course precisely the issue in question.
Whether it does or whether it does not to just claim it does is not sufficient.
One would need an argument to show that it does, and I don't see any argument.
And on the contrary, if you look and I won't. Go to the legal debates.
Now they've got a lead too far. But in the US American law, it seems really to be at least you can make a very, very strong argument.
It seems to be the case if, for example, you take the model penal code into account who was rendering of necessity defence.
This has also been adopted by some US states.
If you take the model a legal code into account, it's clear that you can, for example, have a necessity defence to kill persons rights.
But the Model Penal Code claims that you would still be liable at least to pay,
and then compensation may be filed for the people for for the for the children or the kin of the person you killed for wrongful death.
Right. And in addition, a legal scholar called Christie,
he makes the argument that he does not see any American court who would claim that somebody who defends himself against this attacker,
who has a necessity defence to attack you. He says he cannot see any any court in the U.S. saying that the attacker would have
to pay compensation to the children of of the that the defender I mean the innocent
person would have to pay compensation to the children of the attacker in case that
he can actually defend himself against the attacker successfully by killing him.
So the idea is there is, according to Christi, that you have a more or less symmetry or legal asymmetry in this case in place.
And this would be precisely how McMahon, at least more recently, defines liability.
So if there is this symmetry, if that justified attacker can be killed justly by the defender,
then while the other way around that person who has a necessity defence cannot kill the person towards which he's using this necessity defence justly.
Then you again have this kind of more or less symmetry that would show that one person is liable and the other person is not.
So the point that justification defeats liability is just not particularly plausible.
And by the way, also, apart from the legal side, not shared by too many philosophers, I mean friends of come,
for example, it's very clear about the fact that justification does not defeat liability in this way.
Now, Jeff has tried to cause me problems with alleged counterintuitive implications.
My my account would have and I will not go through this because I think, Jeff,
in order to ascribe these implications to me, has to ascribe assumptions to me.
I simply do not make. And second, some of the of the arguments rely on the confusion between liberty rights and claim rights.
And quite frankly, it's very complicated. And I'm not sure that you can really orally explained as well.
I think you have to see in this to see this in writing. So at the moment, well, you don't have to take my word for it,
but I think the implications charging me with counter intuitive implications does not really work.
On the other hand, I cannot resist to point out that Jeff's own position,
that liability to attack lies in being morally responsible for an unjustified threat.
The moral responsibility for an unjustified threat comes with certain counter-intuitive assumptions.
He gives himself one example, and he doesn't really, you know, solve the problem.
He he's he's honest and states that's really a problem.
And he's now trying actually to move on. But he's in between he has not yet provided an account that would solve the problem.
And the problem is this, he says, well, suppose there is a mother, for example, and a mother can say she's giving birth.
And of course, there's a reasonable chance there is some chance,
at least foreseeable chance that your your son or daughter might turn out to be a killer and unjustly kill some person.
Right. And on his accounts, it would in his account as its formula,
it was actually follow that in a situation where now this this this danger materialises and the son is about to kill an innocent bystander.
This innocent bystander would be allowed to save her own life by somehow using the mother.
For example, if in that situation, 20 years after giving birth, he would the the attack person would be able to defend herself or to have.
The threat of the sun by killing the mother. He would be allowed to do that.
And Geoff admits that's counter-intuitive and I agree it's completely counter-intuitive.
Why my account where, you know,
you become liable to attack by posing an unjust threat to another person in the way I have described and the obvious way,
what the most obvious way would be by violating the other person's rights can deal with this problem.
And the problem doesn't even arise because the mother, by giving birth, doesn't violate anybody's rights at all.
And when the son finally attacks somebody, she's also not violating anybody, which provides that the son is doing it right.
So I don't have this problem. And Jeff tries not to to fix it somehow.
But my to be honest, my my and my prediction is that he cannot solve this problem without really completely revising his sole account.
And I'm not sure how much what will be kept of it.
And what's more important, I have somehow a feeling I might be wrong, that it would be very close to the accounts of rights violations I have.
I have stated with modifications. I mean, he doesn't like a count of rights violations or an account of of liability where innocent threats are.
Innocent attackers could also be killed. But he could prevent this.
But on the side where you have only rights violations,
I wouldn't I would somehow anticipate that there wouldn't be a great difference between his account and mine.
Okay. So far, so good. Let me.
Well, I think I should actually come to the end. Let me let me say what all this implies and does not apply.
Now, I have said that you can make the argument that due to the fact that the soldiers on
the unjustified in most modern wars are posting unjust threats to innocent bystanders,
they are liable to attack.
And liable to attack, in this sense means that the combatants on the on the unjustified sites could kill them without wronging them.
Right. So if they kill them, they have not violated their rights.
That's what liability means as as Jeff and I and others use the term.
So if somebody is liable to attack, you can attack this person without violating the presence right now from this itself, it doesn't follow.
That's permissible to attack the person. There's a difference.
And the difference is a little bit the mirror sides of a distinction that is sometimes made the other way around.
For example, with the necessity defence.
The necessity defence basically states that you can under certain circumstances, violate a person's rights and be justified in doing it right.
But you can also have that's now not necessity justifications, but that's what I say.
You can also have the country position, namely that you can have situations where you can't do something,
for example, hurt a person without violating the person's rights but still not be permitted in doing it.
And examples are obvious. You know, if let's say let's say if somebody attacks me and, you know, tries to slap me, then I would normally be justified.
Not only justified, I would he would become liable to my counterattacks.
So if I could stop him by slapping him first, I would be not only allowed to do it, but it would be just right.
So I wouldn't the person couldn't complain about it.
Now suppose that I know that if I would react in this way to the attack of this person was trying to slap me.
And I know that if that happens, a super villain will blow up a kindergarten to take the extreme example and that this circumstance,
it seems to me that I would not be permitted in defending myself against the attacker.
If I do defend myself. Well, I don't wrong him because he's an unjust attacker.
But of course, I have to take the bigger picture into account. And the bigger picture is, you know, just saving my life.
A slap on the face is not it's not so important that I should allow a kindergarten to be blown up.
So so my argument my argument that you have this equal liberty rights of combatants on both sides in modern wars does not imply,
you know, this this facile conclusion that you can happily now take part in every war.
It only makes, you know, the the decisions you have to make somewhat more difficult, by the way,
and this is kind of important for me, because it seems to be constantly overlooked.
And by the way, on the other hand, that you can party, that you participate, or that you can justifiably participate, not that that's wrong.
On the other hand, the fact that. Soldiers on the so-called justified sides can kill combatants on the unjustified side justly.
That's also not necessarily mean that they are permitted to do it.
While the obvious example would be again, like, you know, the kindergarten example,
but just blown into a bigger dimension, seeing all the state of humanity and the survival of humanity is at stake.
Or something like this. If the just soldiers or the just justified soldiers would actually attack the unjustified soldiers, something terrible.
What's happened, the planet would blow up. But even even if you forget about that, just to say as a conceptual possibility.
But even if you forget about this, I think very often maybe if you look at humanitarian interventions, of course, you you save a lot of lives.
Maybe if you commit if you engage in humanitarian intervention.
But these interventions cost really, really a lot of money.
Right. And the question is, could you not use this lot of money better?
So if by your humanitarian intervention, you would save your spent X amount of money, x money units and you're safe with your war.
Maybe 30,000 people from genocides, but you could with these X money you units if you give it to Oxfam save 2 million people from starving.
It is not that clear to me that you are permitted in taking part in the justified war.
So by the way, this seems to me also a certain kind of indication that justifying humanitarian wars might be more difficult than many people assume.
But but that I really want to make clear that I'm not trying to fall back on some kind of world zarian position.
My argument is very much different than from Walt's Walter's argument.
What's a basically first? I don't think his argument is a justification.
And Jeff has really pointed this very clearly out,
that Walter's argument cannot reasonably read as a justification of the soldiers on the unjustified side for killing their soldiers.
On the on the justified side. There's some kind of general tendency of just excusing the soldiers and say it's okay to just follow the orders.
Right. And I, I disagree with this.
I don't think it's just okay to follow orders on the unjustified side.
Nor do I agree that just okay to follow orders on the justified side.
And of course, my argument thus does not deny the principle point Jeff McMahon and others before him are making,
namely that there's not this general moral equality of combatants.
For example, you could have a war where one side is invading another side's country and unjustly,
and the justified defenders are not actually posing unjust threats to anybody.
You could make an argument while they are still posing unjust threats to their own innocents.
Right. But actually, you have an argument against this where you can use McMahon's own recent article off of
McMahon about the just distribution of harms between combatants and non-combatants,
for example. If so to say,
the defenders are defending the invaded country on behalf of their own citizens and maybe with the conscious consent of their own citizens.
Then it seems to me that even if they are defensive,
actions also endanger their own citizens in concrete manoeuvres and in concrete tactics would not do an injustice to their citizens.
So my point is that in principle the argument is correct you don't have a general moral equality of combatants.
However, McMahon and others really greatly exaggerate the scope of the argument, since in most modern wars and the most wars generally,
probably the soldiers on the unjust, on the justified side pose and thus unjust threats to innocent bystanders.
They are also liable to attack. Okay. Thank you. Thank you very much.
The.