If You Care About a Rule, Why Weaken Its Enforcement Dimension? : On a Tension in the War Convention

Abstract

In War by Agreement (Oxford and New York: Oxford University Press, 2019), Yitzhak Benbaji and Daniel Statman argue that the ‘war convention’ – i.e. the international laws and conventions that are widely accepted to govern the use of force between sovereign states – represents a morally binding contract. On their understanding, the war convention replaces a pre-contractual morality governed by principles that so-called reductive individualists have identified and argued for over the past twenty years. This paper argues that if we take Benbaji and Statman’s contractarian interpretation of the war convention seriously, we have to conclude that its in bello rules have moral force only in contexts where its ad bellum rules were breached non-culpably. While Benbaji and Statman do not attend to this limitation of their argument, it has important ramifications in practice, as it is frequently unclear in the context of war whether one’s adversary is acting in good faith.