Imagine that you’re a soldier fighting in a war properly authorised by the United Nations. You find yourself face to face with a soldier from the other nation and you are legally allowed to shoot them. As you’re about to shoot the enemy soldier with your ordinary gun with lethal bullets, a magical goblin appears and offers you a different gun: one that will not kill the other soldier, but will incapacitate them with searing pain.
Which gun should you use?
The common public intuition is that the preservation of human life is the only absolute. Life is sacred, and every soul is unique and precious. This public intuition plays out weirdly in a bunch of debates. In the death penalty debate, advocates of the death penalty often have to claim that the crime committed is so bad that they forfeited the sanctity of their own life. In the birth control debate, pro-choice advocates often have to claim that a foetus does not yet have a life deserving of protection. And so on and so forth.
But this intuition about the sanctity of life seems to get suspended at the threshold of discussion about the law of armed conflict. We enter a space where we all agree that, yes, you are justified in killing (some) people. If you don’t agree, then we aren’t talking within the law of armed conflict.
This comes with a big caveat: just because you can kill somebody, that does not mean all methods of killing them are lawful. There’s a body of international law dedicated to the restriction of lethal weapons. For example, there’s a treaty which bans bullets which expand or flatten easily in the human body. Further (and we’ll discuss this more later in this post), you can’t use chemical weapons to kill people.
And where this all gets really weird is the restriction on sub-lethal force. So although we’ve all agreed that you can kill somebody, we have not strictly agreed what you can do to a person if you’re not going to kill them. Or, to put it another way, although we have created a space where ordinary laws related to killing a person do not apply, we haven’t created a lawless space where a bunch of other laws don’t apply.
So back to our fantasy situation above. You can use the gun that kills with absolutely no worry at all, but the gun that incapacitates with searing pain might be (and probably is) against the law of armed conflict. This strikes us as weird: the law prefers that you kill the other soldier rather than subject them to searing pain.
It is important that we understand the conflict between the legal framework and our intuitions because it throws off our public reasoning about, for example, the decision to bomb Syria.
Take, for example, the complaint that we were fine for Assad to kill half a million people with conventional weapons, but smacked him with a missile when he killed fewer with chemical weapons. While this seems like a reasonable position on the surface, we can see that the system treats chemical weapons very differently from most other kinds of weaponry. Even if Assad had failed to kill a single person with the chemical, we would be equally justified in being outraged at the flagrant disregard for the law of armed conflict.
It’s not intuitive, but it makes sense within the particular moral framework established by the law of armed conflict.