Contractarianism and Emergency

This chapter offers a contractarian interpretation of the laws of war, in which the moral standing of the laws of war follows from their being terms in an actual agreement between states for the regulation of the conduct of combatants in the battlefield. The chapter illustrates this "actual contract" account to elucidate one of the most important laws of war, namely the exemption states have from the basic prohibition on direct attack against civilians in cases of emergency-the so-called emergency exemption. The group of civilians protected by the basic prohibition is surprisingly large; it includes rulers, political activists, and supportive citizens who might well be culpable for the unjust threat posed by their aggressive state. On the proposed contractarian account, the immunity of those civilians is conventional; in point of fact, states and soldiers have undertaken the duty to avoid attacking culpable civilians in order to immunize their own civilians from direct attack. This chapter shows that the conventional contractarian account illuminates the special permission assigned to just states in extreme circumstances. Extreme circumstances are those in which the contract that immunizes culpable civilians collapses. That is, it can be known ex ante that, in these circumstances, a rationally-led state has no reason to prefer rule-governed war to total war. This is the case if a defeat in a rulegoverned war would result in dehumanization, enslavement, or systematic murder.