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Evaluation of Jus in Bello by Helen Frowe

In the reading Jus in Bello by Helen Frowe, Frowe examines the guidelines for just war, jus in bello. Frowe’s interpretation of jus in bello and it’s guidelines are fairly moderate, however can be interpreted as presenting justification for the necessity of jus in bello. The reading describes first, the orthodox view of just war theory, that being the divorce of jus ad bellum and jus in bello, arguing in favor of this divide. From here Frowe moves into the main point of the argument, that being the rules of jus in bello and how they function to create a world where a soldier can wage war justly. Frowe outlines the parameters of each aspect of jus in bello, addressing both their downfalls and successes. Frowe uses these to justify the necessity of rules of war.
Frowe begins to supplement her argument in the section called “The independence of jus in bello.” In this section Frowe outlines the orthodox view of just war theory, that being the independence of the soldier’s actions and that of the state. Frowe goes so far as to say that “It is politicians who decide whether or not to fight a war, and it is thus they who are morally and legally responsible for the overall justness of that war.” (Frowe 103) Frowe continues to argue that if we denied soldiers the divorce of jus in bello and jus ad bellum, soldiers made to fight in an unjust war by political entities would be immediately branded criminals. Frowe argues in this section that since most often a soldier is unaware they are fighting an unjust war, it makes sense that we only observe a soldier’s in bello practices. This is especially salient to her argument in favor of the jus in bello rules of war because it shows that we cannot truly analyze the actions of a soldier in relation to the state without in bello justification. Next, Frowe moves on into the rules and functions of just in bello.

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Frowe’s initial statement regarding the qualification of combatants solidifies it as a premise in her argument, “The great moral weight that rests upon the division between combatants and non-combatants means that we need to be pretty clear about who counts as a combatant and who doesn’t.” (Frowe 105) This statement is grounded in Frowe’s argument that rules of war are necessary as it shows the qualifications for who is a combatant are absolutely vital to the moral theorem of war and the safety of combatants and non-combatants alike. Frowe continues by defining the necessities for qualification as a combatant, that being 1. They must be a part of a hierarchical group with a chain of command, 2. They must be recognizable as part of that group (uniforms, emblems, etc.), 3. They must bear arms visibly, and 4. You must obey the rules of jus in bello. She proposes several sub-arguments that fortify her initial premise in favor of this jus in bello rule, such as: First they must be a member of a larger group which ensures and enforces authorization to commit acts of war in order to distinguish from acts of terror. Second, that wearing a uniform protects non-combatants from harm by distinguishing them as combatants. Third, they must bear arms openly because there are cases, such as in guerilla warfare, that an army may be disqualified if too poor to afford uniforms (again to protect civilians from unprovoked attack.) Frowe’s final justification for the qualification of combatants is that following jus in bello rules protects combatants in prisoner of war situations and allows the war to be fought with some level of justice.
Frowe’s justification for the necessity of jus in bello continues with the second rule, the discrimination of legitimate targets (personal and non-personal.) Frowe outlines the necessity of this as a rule of war in her opening statement “As mentioned above, one of the primary reasons for distinguishing combatants from non-combatants is that only combatants are legitimate targets.” (Frowe 108) Frowe’s main argument for the jus in bello rule regarding personal targets centers around the prohibition of intentional killing of non-combatants. This premise is due to the unnecessary and criminal nature of the act. Frowe continues with an argument surrounding non-personal targets (i.e. buildings, barracks, bases.) Frowe specifies that under the rules of jus in bello the only legitimate targets are non-personal targets that serve a militaristic function. Frowe’s argument for the necessity of this jus in bello rule focuses on the non-combatant deaths associated, and the necessity to keep a war centered around the opposing sides rather than the citizens of each nation, shown in the statement, “Remember that we’re talking here about legitimate and illegitimate targets. One cannot deliberately aim at a school or hospital during wartime. (Frowe 110.”)
Frowe argues the necessity of the jus in bello rule of legitimate tactics by focusing on it in parts. The military necessity is an incredibly important rule of jus in bello according to Frowe because it creates the basis for the ad bellum rules of war. “Once combatants begin to concern themselves with the wider politics of war, it becomes harder to sustain the idea that they lack responsibility for ad bellum considerations about the justness of war. And, as described above, undermining the ad bellum/in bello divide has significant implications for the moral status of combatants.” (Frowe 112.) This frames Frowe’s idea that jus in bello rules are necessary to sustain the morality of combat. Frowe’s views on proportionality reflect heavily on the ideas that there are “four ‘types’ of lives that are at risk during war… enemy combatants, …enemy non-combatants, …our combatants, …and our non-combatants.” (Frowe 112) Frowe navigates the debate of proportionality in relevance to the cost and permissibility of death towards these groups in a reflection of the theories of just war, and distinguishes it as vital to the conversation of jus in bello towards the end of page 113. Frowe’s final analysis of legitimate tactics analyzes the use of weapons. Frowe not only analyzes the types of weaponry that break the rules of jus in bello, but also supports her argument for the necessity of jus in bello when discussing why they are banned. Frowe emphasizes that weapons such as WMDs and blunt-instrument weapons carry excessive force, cause unnecessary force and endanger the lives of “innocent and friendly non-combatants.” (Frowe 118)
Frowe’s discussion of the final rule of jus in bello is primary and salient to her argument for it’s necessity. She discusses the positives of this point at length, citing the equally shared belief that this is in best interest of all parties at war, because who would want their soldiers murdered or treated inhumanely? Another point Frowe makes for the necessity of this aspect of jus in bello is the importance of reconciliation after the war ends, which is more easily achieved when a country has assurance their soldiers will make it home.
One criticism I have about Frowe’s argument for the following of the jus in bello rules is that the rules of jus in bello, while important were created in a vacuum, that meaning that they were created to exemplify the perfect war. However, war isn’t perfect, war is messy. Frowe’s views on jus in bello don’t take into account that often the enemy isn’t following jus in bello to the letter, they don’t take into account major atrocities committed by whole armies that the government doesn’t wish to punish.

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No war can be the perfect war, because wars are at their essence fought because both sides want to win. Often, as with the case of Kosovo a country or group will ask of it’s armies to break jus in bello, and the generals will agree. How is this meant to be punished when Frowe states herself that, “…a violation of the laws of war is usually punished internally by one’s own military organization…” (Frowe 109) So, when a country sanctions it’s military to break jus in bello, who is there to punish this? The country will not.
The problems of the vague and too perfect nature of jus in bello could potentially lead to atrocities as exemplified by the nature of the rule for qualification of combatants. The rule is too vague, allowing guerrilla warfare. However, it can be argued that guerilla warfare breaks multiple aspects of the rule for the qualification of combatants, a point overlooked by Frowe. A guerilla is often not receiving orders from a commander despite being involved in a group, as in the case of the Vietcong, where it was essentially a group of citizens who hid in small villages, (also wearing no uniform.) To this end were the Vietcong not considered a terrorist group rather than an army?
In response to my argument against the vague and too perfect nature of the rules of jus in bello Frowe would likely argue that the rules of jus in bello need to be vague and can only have been made in reference to the ideal war-scenario. This is due to the fact that wars by their nature are incredibly unpredictable. Because wars are so unpredictable it would be impossible to create rules of war that would cover every instance. If a situation was not covered by the rules of war chaos could ensue, mass destruction even. The example of the Vietcong’s guerilla warfare is a prime example of this. Because the rules surrounding a combatant’s display of an emblem or uniform is exempted should a group not have the money or ability to generate emblems or uniforms, the Vietcong were able to fight against the US instead through guerilla warfare. This indicates that while no war can conform to the idea of a perfect war, the fluidity of the rules of jus in bello give every state an opportunity fight on behalf of themselves and their sovereignty.
In summation, Frowe supports her argument for the necessity of jus in bello through numerous cases in relation to the individual rules it presents. Her primary arguments state that the rules of jus in bello protect order outside of the war and combatants, while preventing unnecessary death and protecting those who cannot protect themselves in some capacity (hors de combat, non-combatants, prisoners of war.) Her argument is solid, providing a rebuff for arguments against jus in bello even in cases where jus in bello is difficult to follow, such as soldiers fighting in an unjust war.
Works Cited

  • The Ethics of War and Peace: an Introduction, by Helen Frowe, Routledge/Taylor & Francis Group, 2016, pp. 103–121.


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