Just war theory is a difficult, even paradoxical, philosophical topic. It is not just that warfare involves large-scale, organised, deliberate killing, and hence might seem the very paradigm of immorality. The just war tradition sharply divorces the question of whether or not it is permissible to resort to war – the question of jus ad bellum – from the question of how and against whom one may inflict harm once at war – the question of jus in bello. As Michael (...) Walzer notes,1 this separation of jus in bello from jus ad bellum means that we can meaningfully talk of an unjust war being fought justly, and vice versa: soldiers defending against aggression might nevertheless be criminals for the way in which they do it; while soldiers prosecuting an aggressive war, provided they fight it in the right way, are without culpability. This paper will draw upon the morality of individual self-defence to explain certain important features of the traditional jus in bello: the permissibility of killing, even by soldiers who lack justice on their side; the principles that govern surrender and the taking of prisoners of war; and the principle of discrimination between soldiers and civilians. Our explanation will not leave all aspects of the jus in bello undisturbed: it has consequences that are revisionary in at least some respects, this being the upshot of trying to explain the jus in bello in individualist terms. Partly because of such consequences, approaching the morality of war in individualist terms is neither straightforward nor uncontroversial.2 But we are prepared to accept.. (shrink)

Nations are understood to have a right to go to war, not only in defense of individual rights, but in defense of their own political standing in a given territory. This paper argues that the political defensive privilege cannot be satisfactorily explained, either on liberal cosmopolitan grounds or on pluralistic grounds. In particular, it is argued that pluralistic accounts require giving implausibly strong weight to the value of political communities, overwhelming the standing of individuals. Liberal cosmopolitans, it is argued, underestimate (...) the difficulties in disentangling a state’s role in upholding or threatening individual interests from its role in providing the social context that shapes and determines those very interests. The paper proposes an alternative theory, “prosaic statism”, which shares the individualistic assumptions of liberal cosmopolitanism, but avoids a form of fundamentalism about human rights, and is therefore less likely to recommend humanitarian intervention in non-liberal states. (shrink)

This chapter argues that, because humanitarian intervention typically involves the military of one state attempting to overthrow another state ’s government, it gives rise to different moral questions from simple cases of interpersonal defensive violence. State sovereignty not only protects institutions within a society that contribute to the satisfaction of individuals’ interests and that cannot be easily restored once overthrown; it also plays a role in the constitution of those interests, which cannot be assumed to be invariant across different forms (...) of social life. As a result, humanitarian intervention will frequently give rise to incommensurability between the pre-intervention and post-intervention states of affairs. The reasons against violating sovereignty, together with reasons for conservativism in action that arise in circumstances of incommensurable value, mean that the threshold for the moral permissibility of humanitarian intervention is high. The chapter concludes by outlining how humanitarian intervention might be internationalized, making it easier to justify. (shrink)

Democratic countries, such as Australia, face the dilemma of preserving public and national security without sacrificing fundamental freedoms. In the context where the rule of law is an underlying assumption of the constitutional framework, Emergency Powers in Australia provides a succinct analysis of the sorts of emergency which have been experienced in Australia and an evaluation of the legal weapons available to the authorities to cope with these emergencies. It analyses the scope of the defence power to determine the constitutionality (...) of federal legislation to deal with wartime crises and the 'war' on terrorism, the extent of the executive power and its relationship to the prerogative, the deployment of the defence forces in aid of the civil power, the statutory frameworks regulating the responses to civil unrest, and natural disasters. The role of the courts when faced with challenges to the invocation of emergency powers is explained and analysed. (shrink)