War's Ends: Human Rights, International Order, and the Ethics of Peace

8. Proportionality

180 Chapter 8 Proportionality “But what good came of it at last?” Quoth little Peterkin. “Why, that I cannot tell,” said he: “But ’twas a famous victory.” Robert Southey, “The Battle of Blenheim” Proportion and Judgment Proportionality is the final and most obscure criterion in jus ad bellum. Some of its obscurity can be removed if it is accepted that it is logically dependent on the other criteria. If any of the earlier criteria are not fulfilled, the proportionality condition cannot be met.1 I also hold that proportionality’s obscurity is partly unavoidable since it is a kind of “catchall” for any moral concerns not addressed by the other more specific criteria. The absence of just cause or right intention would mean that in a given instance going to war or resorting to military force would be morally wrong and unjustifiable. Whether there was a reasonable prospect of success or the last resort had come would then be irrelevant since neither would change the fundamental immorality of going to war in those circumstances. Similarly, regardless of how proportionality was defined or understood, it could not compensate or make up for the lack of just cause or right intention. Oliver O’Donovan highlights a significant aspect of that point in an interesting way: Proportion . . . has to do with the rational form which [an act of judgment ] assumes, i.e., with the shape of a successful act of judgment. The question of proportion has to be raised at two distinct points. On the one hand, since an act of judgment is reflexive, backward-looking, pro- Proportionality 181 nouncing on a preceding act or on an existing state of affairs brought about by previous acts or failures to act, it has to be proportioned by a truthful description of the wrong done. On the other hand, since an act of judgment is also forward-looking, constituting a law-governed context within which future acts, private or public, are to be performed, it must be proportioned to the state of affairs which it attempts to realize. (2003, 48) O’Donovan does three things here. He relates proportionality to the wrong or the threat that generates just cause. That’s the backward-looking pronouncement on a preceding act. Second, he relates it to the morally appropriate goal or right intention aimed at by the competent authority deciding on war. That’s the forward-looking aspect of judging, oriented to achieving a law-governed intention. It is clear that he takes these two as distinct from each other, taking it that right intention is not automatically to be identified with rectifying injustice. Third, he emphasizes the act of judgment.2 In discussing just cause and right intention in earlier chapters, I focused on the data, considerations, historical experience, and other contextual factors relevant to making an informed judgment but without adverting to the judgment. In the context of the current discussion of proportionality, I argue that if just cause is lacking or substantially deficient, resort to war will not be a proportionate response. O’Donovan is arguing that the act of judging must be conditioned, limited, or proportioned by the purported just cause or grounds for going to war. As he notes later, much of the discussion in the literature on the proportionality condition has viewed proportion solely as a relation or balance between the cost of going to war and the hoped-for gains from doing so. In consequence, the judgment of proportionality is treated as purely prospective . That ignores the retrospective aspect of the judgment of proportionality whereby it judges the moral and political significance of the events that constitute just cause. As should be clear from the earlier chapters, the competent authority empowered and required to make the kind of judgments that bear on war and peace cannot qualify as having a right intention unless its intention is in some way balanced by a reasonable judgment about the cause. However, the proportionality condition contains more than that balance, as will be discussed presently. It suffices here to note that just cause, and not only right intention, is a necessary precondition for passing the proportionality condition . Where the fundamental moral elements of being justified in going to war are missing, going to war would necessarily violate the proportionality criterion.3 182 CHAPTER 8 Finally, meeting the reasonable probability of success and last resort criteria are also necessary for proportionality. If there...