Inextricable Accomplices: The Meaning of Fighting in an Illegal War and International Law's Dissonant Treatment of the Soldiers Forced to do it

Abstract

Waging illegal war is an international crime; international law requires disobedience to criminal orders; and the ban on fighting such wars is one from which states lack their usual right to opt out. Soldiers taking this seriously might think that fighting in wars they have good reason to believe are illegal entails doing grave wrong. And yet, those that refuse orders to fight in such situations are legally defenseless against criminal sanction for that refusal. International law criminalizes wrongful war, but it accepts the criminalization of those who refuse to kill in its prosecution.

This ought to be jarring. But the prevailing normative account of the existing regime suggests otherwise. It holds that soldiers ordered to fight in a wrongful war are not thereby required to act wrongfully; their responsibility extends only to the jus in bello. Drawing on the sources and theory of international law and on recent philosophical critiques of this moral equality of combatants, I reject that view, arguing that the wrongfulness of the killing in an illegal war is what makes sense of its criminalization and that a coherent normative account of international law must acknowledge the heavy moral burden of those who fight in an illegal war.

The most plausible internal account of the extant regime holds instead that protecting refusal to fight in illegal wars would undermine states' capacity to fight lawful wars, with calamitous consequences for global justice and security. To the extent it holds empirically, that danger justifies the vulnerability to punishment of those who refuse to fight in illegal wars, even though they do right by international law's own lights. Those who avoid criminal liability and fight are left bearing the moral remainder of international law's institutional weakness.

Importantly, this account is contingent on the conditions of the necessity enduring. Calling precisely that into question, I identify a series of reforms that would better adhere to the limits of that necessity. Pursuing change of this kind is an internal imperative if international law is to respect soldiers globally, and if those committed to it are to respect their own troops locally.