This article challenges the tendency exhibited in arguments by Michael Ignatieff, Jeremy Waldron, and others to treat the Law of Armed Conflict (LOAC) as the only valid moral frame of reference for guiding (and judging) armed rebels with just cause. To succeed, normative language and principles must reflect not only the wrongs of ‘terrorism’ and war crimes, but also the rights of legitimate rebels. However, these do not always correspond to the legal privileges of combatants. Rebels are often unlikely to gain belligerent recognition and might sometimes have strong moral reasons to exceed the rights of regular combatants. Where this gives rise to tensions between morality and the LOAC, a decision is needed to determine which to follow. Setting aside the idea of (a) suppressing just war theory altogether in favour of a more purely regulatory approach to war and (b) reforming law in the direct light of moral theory, I question the attempt by Waldron (among others) (c) to argue that moral weight of the legal conventions at the heart of the LOAC trump any moral reasons there might be for breaching them. Even if non-combatant immunity is, as Waldron suggests, a deadly serious convention, I argue that war is justified only if pursued for the sake of deadly serious causes which may even be serious enough to oblige agents to break the law. A political theory of the ethics of war is needed (d) to mediate between the moral and legal in such cases where they cannot be reconciled directly.
Finlay, C. J. (2018). The Deadly Serious Causes of Legitimate Rebellion: Between the Wrongs of Terrorism and the Crimes of War. Criminal Law and Philosophy, 12(2), 271-287. https://doi.org/10.1007/s11572-017-9420-2