There is a general agreement that the most terrible single act is to take someone’s life. When discussing war meanwhile, it seems that “the best that war can be is terrible acts limited”. If we bring these two ideas together then we accept a position where the ‘best’ war is one which achieves the greatest limits to the number of terrible acts or harms e.g. death.
The way wars are fought has changed since the original conception of the laws of war were created. No longer do two opposing armies (more often than not comprising of the simple distinction of two sovereign states) fight one another on an isolated field somewhere. Instead, wars are increasingly being fought by non-state actors within state borders.
These non-state actors engaging in ‘wars’ include financially motivated actors such as the Mexican drug cartels, as well as politically motivated organisations such as Al Qaeda. I will here argue for the unpopular view that the laws of war should apply to these organisations; even as they operate outside of the traditional boundaries of Just War Theory.
While it seems instinctively abhorrent to grant the same rights to organisations such as the Mexican Drug Cartels who operate outside of normal laws on a regular basis there does seem some justification (along consequentialist lines) to apply the same laws of war proposed for state conflicts to that of the drug cartels. The Laws of War apply to situations external to the jurisdiction of everyday laws. It seems that, certainly the more powerful cartels operate almost as states unto themselves with strict hierarchical structures, uniforms and their own laws. Consequently there is little reason to exclude them from the laws of war along lines of them not meeting state definitions. Furthermore, if the inclusion of them under the jurisdiction of the International Laws of War, meant that the number of deaths caused by these cartels would be reduced, and that the Mexican state is unable to prevent the harm from being inflicted, then this seems the most morally acceptable act as it will limit the amount of harm caused.
This raises a separate concern that the legalisation of the cartel would grant them some legal (and potentially legal) weight and would allow those individuals within the cartel and committing harm to be considered and legally required to be treated as prisoners of war and have the same rights as soldiers of any state. While ideally this would not have to be the case, if we take the violence between the cartel and the Mexican state as a war, and this idea does not seem so farfetched, then as is the case in all wars, we are accepting that things that would not otherwise be morally acceptable are, for the duration of the war, not legally prohibited.
Secondly, if we take politically motivated groups engaging in wars or attempting to instigate a coup then there is no obvious reason that they should not be held to the same laws of war as the state they are fighting. In this way, the rebels in Syria should ideally be held to the same laws of war as the Syrian army. This would mean that they would be bound by laws which should minimise the potential causing of harm. If we are willing to do this for Syrian rebels based on consequentialist reasoning, then we should do the same for organisations whose goals are disagreed with.
This is not a position which should be taken lightly, and I am not even sure that I myself would advocate it even as a consequentialist. However, it does show that the common ways of thinking about war and conflict may need to begin to think more radically to find ways to effectively influence and reduce the death that occurs around the globe on a daily basis.