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Final Report Summary - TAW (A Theory of Asymmetrical Warfare: normative, legal, and conceptual issues)

War as a social phenomenon has changed significantly over the last twenty to thirty years. Some of these changes are the result of technological advances, such as drones and non-lethal weapons, while others have to do with the emergence of non-state armed groups as a prominent player in contemporary warfare. Still others have a longer history and could be considered classical for the purposes of international law or just war theory, as aptly illustrated by guerrilla fighting, terrorism, or partisan warfare in the two World Wars. These circumstances entail that most contemporary wars are likely to be described as asymmetrical in some form or another. Asymmetry in this context basically means one party in the conflict adopting non-conventional weapons, strategies, and organizational structures to maximize an advantage, take the initiative, or exploit the opponent’s weaknesses in armed conflict. Furthermore, contemporary non-state actors fundamentally diverge from those acting during the decolonization era in that they explicitly present themselves as a disruptive force in international relations, rather than as aspiring members in the international society. Resort to asymmetric warfare is not an approach exclusively resorted by non-state armed groups. Some states, including Brazil, Venezuela and other emerging countries, currently provide for asymmetrical conflict strategies as official policy in respect of potential conflicts with greater powers.
This Project provides an interdisciplinary evaluation of some of the philosophical and legal issues raised by these “new” armed conflicts. At the conceptual level, I have examined several of the principles concerning the permissible use of lethal force, such as proportionality, necessity, and reasonable prospect of success, and the logical relations between them. I have argued that the reasonable prospect of success is not an independent requirement for permissible use of military force but that it is part of any sensible analysis of proportionality. At the most basic level of interpersonal defensive rights, I made significant progress on deepening a conceptual distinction between considering an individual liable to be killed, and it being merely permissible to kill her. This distinction has far-reaching implications for the revisionist approach to just war theory, which has standardly focused only on the distinction between liable and non-liable individuals. This main conceptual divide allows me to develop a new position within the revisionist paradigm of just war theory that distinguishes, not merely between just and unjust belligerents, but between just, merely unjust and criminal belligerents, whereby only the latter are liable to being killed.
At the substantive level, I have addressed three main areas. First, I have tackled the issue of asymmetric technologies, working in some depth on the impact of drones, cyber-weapons and other types of non-lethal weapons on the principles of the jus ad bellum and jus in bello. I have argued that two sets of considerations should carry the normative weight in this context. On the one hand, these technologies have an impact on the assessment of the proportionality of an attack, rather than other principles such as necessity or reasonable chance of success. On the other hand, I argue that the reasonable prospect of success, as well as subjective considerations such as whether a particular harm was intended, foreseen, or merely accidental, are logically connected to the proportionality analysis in ways that were not apparent in the literature.
Second, I examined the implications of contemporary revisionist just war theory tenets on the notion of war crimes. In particular, this entails examining whether “mere” participation of rank-and-file combatants in an unjust war should be criminalized under international law as a war crime. Against the predominant position in international law, I argue that the unjustness of the war may make certain belligerents liable to being punished for this “new” war crime. Against the position defended by leading just war theorists, I argue that we must distinguish between combatants fighting unjust wars from those fighting morally abhorrent or manifestly unjust wars. I suggest that whereas the latter are generally non-liable to being punished the latter would be liable. In this same context, I have examined whether terrorism should be considered an international, a transnational or a domestic offence. Although it has been traditionally considered a transnational crime terrorism, particularly since the attacks of 9/11, has been increasingly considered a plausible candidate for international criminalization. This article distinguishes between national and cross-border terrorism, and between state terrorism and terrorism conducted by non-state actors as relevant “varieties” of terrorism that need to be accounted for. Ultimately, I argue that unlike state terrorism, which should usually be considered an international crime, most instances of domestic and cross-border terrorist activities are better conceptualized as transnational offences.
Third, I have examined the ethics of military occupation. Namely I have explored whether the rights of an occupying power are affected by whether the occupier is ad bellum just or unjust, or whether it is a State or a non-state armed group. Against the currently predominant neo-classical position in just war theory, I argue in favour of the moral equality of just and unjust occupants. Against the orthodox position in international law, I advocate the symmetrical treatment of states and non-state actors fighting internal armed conflicts, at least in terms of the rights they may claim on the territories under their control.
Finally, at the methodological level I have examined the relationship between legal considerations, normative or philosophical principles, and empirical research on war and its effects. This has led to an introductory text on the relationship between law and morality in war. It has also involved clarifying the role of empirical research (particularly on the effectiveness of certain weapons or strategies, and on the harm they expectedly harm to different individuals in war) in fine-tuning our intuitions and normative judgments concerning permissible action in war. By coherently examining the main findings of each of these three literatures, my work can speak equally well to lawyers, philosophers and social scientists.
The key findings can be summarized as follows. First, it is not true that drones are more proportionate than alternative weapons systems. Namely, if proportionality is assessed through a comparison between harm expectedly caused against harm expectedly prevented, on the one hand although it is true that drones significantly reduce expected collateral harm, on the other they are significantly ineffective in preventing harm. Accordingly, they also reduce the harm they are expected to prevent thereby leaving proportionality calculations roughly similar to those considering other weapons systems or tactics. Second, against what mainstream revisionist just war theory has argued, I claim that there is a critical conceptual distinction between combatants fighting a criminal or morally abhorrent war, and those innocently fighting an ad bellum unjust war. Whereas the former are liable to be killed (i.e. they have lost their right not to be killed) the latter are not. I have argued that it is still permissible to kill unjust combatants, but that this argument should be based on the notion of conflicts of rights, rather than on them being liable. This has important implications for the notion of war crimes, the status of occupation forces on occupied territory, and the status of different types of combatants in war. Finally, I have argued that terrorist acts conducted by non-state organizations ought generally to be considered domestic offences, or better, transnational crimes, but not international crimes subject to universal jurisdiction. By contrast, state or state-like terrorism (by organizations with similar features or capacities) has a much clearer justification for being considered an international crime.

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Greta Borg-Carbott, (Senior European Contracts Executive)
Tél.: +442031083033