When the Agreement Collapses

Abstract

What happens when one of the parties to the war contract deliberately ignores it? This typically occurs when one of the parties violates the jus in bello rules by bombing civilian targets, murdering POWs and so on. This chapter argues that the normative implications of breaching the war contract are themselves part of the contract. In the absence of an international body that can enforce the contract on those violating it, the parties have the right to respond to violations of the in bello rules. These remedies—these counter-violations—should be cautious and restrained, with a constant eye on the goal of reinstituting the parties’ commitment to the broken rules. The in bello violations that call for retaliation are of three general kinds: (a) violating prohibitions whose source is merely conventional, such as those outlawing certain weapons; (b) violating the prohibition against targeting civilians in cases in which the civilians attacked bear responsibility for the enemy war effort, such as politicians or party members; and (c) carrying out indiscriminate attacks on civilians. The chapter argues that retaliation in kind is licensed by the war contract in all three categories. Ex ante, decent and partial parties would see the need to deter disobedient parties and to make them realize that they would pay too high a price for violations of the war agreement. Thus, a war ethic of the kind the chapter proposes will make the world a safer place in which to live.