Proxy battles in just war theory: Jus in Bello, the site of justice, and feasibility constraints

What principles should govern the conduct of war (jus in bello)? The answer is deeply contested in the just-war literature. Orthodox theorists argue for combatant equality and non-combatant immunity. Revisionist theorists reject both tenets, insisting that the moral status of those involved in war should track their personal responsibility for wrongdoing. We argue that these disagreements amount to “proxy battles”. First-order disputes about jus in bello are traceable to second-order disputes about (i) the appropriate site of principles of jus in bello and (ii) the feasibility constraints that theorizing about jus in bello should take into account. Regarding (i), orthodox theorists focus on the institutions that govern armed conflict, revisionists on individuals’ conduct. We evaluate both perspectives, and show that, holding a given site constant, the substantive disagreement between the two camps shrinks. Regarding (ii), orthodox theorists are happy to factor likely non-compliance into the design of principles of jus in bello, revisionists resist this move. We argue that, relative to the particular site for which each is theorizing, both stances are defensible. Institutional design should take account of more feasibility constraints than principles for individual conduct. Here, orthodox and revisionist stances turn out to be compatible.