The chapter examines the development and changing nature of the laws and customs of war in Old Regime Europe. It focuses on land warfare, scrutinising the received idea that the waging of war in this age was characterised by a growing moderation and by the improvement of troops’ conduct and discipline. The chapter surveys the major principles and doctrines of the jus in bello and the use thereof made by European players. In doing so, it draws on state and military practice as well as scholarly – legal and military – literature. Subjects which are covered include the theoretical conceptualisation of the laws of war, status in war and neutrality – limited to its terrestrials aspects – the emergence of new legal constraints regarding the treatment of prisoners of war and civilians, siege warfare and use of weapons, the treatment of enemy possessions and occupation.

Between the mid-fifteenth and mid-seventeenth centuries, norms on maritime warfare by both private and public actors developed through the intensification of maritime trade networks, European colonial and commercial expansion in other continents, the growing ascendancy of the sovereign state, and the emergence of a distinctive legal scholarship on topics of the law of nations. Although even among European political actors, there was still no general consensus on precise and binding norms governing maritime warfare, the building stones of a normative framework were gradually established which would be integrated from the later seventeenth century onwards into a more consistent body of international law. Prize courts played a crucial role in promoting the principles of such a legal framework, as did state practice on key issues such as blockade, contraband and neutrality.

This chapter offers a discussion on the laws of war, or jus in bello, as the previous one. However, it provides an exclusive focus on maritime warfare. Old Regime Europe was marked by the expansion of permanent state battlefleets and the strengthening of naval administrations. At the same time, a complementarity between public and private forms of maritime warfare, notably privateering, persisted as one of the defining aspects of naval warfare. The chapter deals with the specificity of waging war at sea and related legal issues. It draws both from state-military practice and from the specialised legal literature that started to appear at the time. Subjects which are covered include the main rules of naval warfare, privateering, the treatment of prisoners of war, the bombardment of coastal cities, prize law and the role of admiralty courts. Particular attention is devoted to the issue of maritime neutrality. Indeed, the recurrent tension between the respective rights and duties of neutrals and belligerents assumed great relevance in this period, being often dealt with in international treaties and legal scholars’ treatises.

This chapter examines the development of the law governing warfare on land in Renaissance Europe. In this formative period, the law of war became a central feature of international relations and a distinct legal field. Wars of religion, the growth of the Ottoman Empire, dynastic disputes and the European expansion all contributed to an almost permanent state of warfare. Against this background, in the sixteenth and seventeenth centuries, several scholars contributed to the development of the law of war, responding to the political, religious and cultural turmoil of the Iron Century by elaborating different theories of such law. They derived concepts and principles from medieval theology, canon and civil law, as well as from history, literature and philosophy. The chapter relies on both primary and secondary sources drawing on state and military practice as well as scholarly – legal, historical and relevant military literature. It surveys the major principles of the ius in bello on land, the international law governing warfare including booty, siege warfare and the treatment of civilians and prisoners of war. Rather than describing the distinct contributions of several scholars to the early modern jus in bello – which could not do justice to the works of relevant scholars, especially in the light of recent outstanding works in the field – this chapter adopts an analytical approach focusing on key themes of the jus in bello, analysing and critically assessing the contributions of various scholars to the same.

Thinking about humiliation and its consequences informs various areas of political theory – even if latently. Part of the point of classical jus in bello restrictions like the requirements of proportionality and discrimination is to limit the harm we do to our enemies, so as to keep alive the possibility of future reconciliation. Indiscriminate and disproportionate harms undermine the chances of peace, among other reasons, because they are humiliating. In the field of transitional justice, the prospect of ending the humiliations endemic to authoritarian governance can justify the compromise of liberal principles (such as retroactive criminalization and reliance on shaky evidence) that transitional policies often involve. Our discussion also takes up the role humiliation plays in political appeasement. We argued that one of the reasons that appeasement is wrong is that it involves a self-humiliation. By deferring to those who threaten force, the appeaser communicates that survival matters more to them than their self-respect.

In appreciating the institutional perpetuity of war, while simultaneously acknowledging the historically informed, inherent limitations of attempts to bound its conduct by international law, this chapter introduces the three interrelated questions that serve as the organising themes of this volume: first, is there a historical continuity with legal protections in war being informed by notions of ‘civility’ and ‘barbarity’?; second, what is the relationship between the ideals and operational realities in international humanitarian law (IHL)?; and third, what are the limitations of international laws designed to restrain excess in war? Via a brief overview of the divergent evolutions of jus ad bellum and jus in bello law, this introductory chapter further explores the sub-themes present in this volume: universalism and its shortcomings; problems with punishing violations of IHL; and the degree to which modern laws of war legitimate activities that should otherwise be prohibited.

In Chapter 2, we address the ethics of raids, those daring, made-for-Hollywood missions like Operation Neptune Spear, the raid to capture/kill Osama bin Laden. Often characterized as ’high risk, high reward’ missions, we consider the moral challenges that that phrase implies. Do big payoffs justify rule-bending or rule-breaking? And who shoulders the high risk? The operators themselves, of course. But do promises of a big payoff justify placing non-combatants at additional risk? And what if that big payoff is a specific person as was the case in the bin Laden raid? As a discipline, military ethics has focused its attention primarily on contests between nameless combatants. It has paid scant attention, relatively speaking, to state-sponsored operations to hunt down and kill a specific person. Is this ever morally permissible? If so, under what conditions? What are the crimes that warrant a death sentence pronounced by a foreign government? Must a state first exhaust reasonable attempts to capture the named target? Does the method of execution matter ethically?

Chapter 1 serves three purposes. First, it introduces the principal question that grounds this volume: Is there something ethically special about special operations? Should special operators be constrained by the same moral framework that guides conventional military operations, or is there something inherent in special operations that justifies setting aside legal and normative restraints? The second goal of Chapter 1 is to establish a common understanding of what makes special operations and SOF distinct from conventional operations and general purpose forces. Finally, before we can assess how special operations trouble the rules of war that govern conventional military operations, we will need to outline in broad terms what these rules are. Chapter 1 provides an overview of the just war tradition.

In Chapter 5, we reflect on the ethical challenges of irregular warfare. In special operations doctrine, irregular warfare most often involves working ’through, with or by’ foreign guerrillas (unconventional warfare) or foreign counter-guerrilla forces (foreign internal defence). Engaging in armed conflict through proxies can seem like a cheap and low-risk option to policy-makers, but it also contains the potential for conflicts of interest and priorities inherent in all principal–agent relationships. If a powerful state (the principal) feels it has achieved its war aims, can it simply withdraw from a fight in which their proxies (the agent) and their SOF partners are still engaged? Likewise, proxies have incentives to mislead sponsor states as to their capabilities, intentions, and commitment to ethical warfighting. To what extent are SOF morally accountable for the ethical conduct of the foreign combatants whom they advise?

In our concluding chapter, we refocus our attention on the individual SOF operator. A career, or even a deployment, in special operations exposes operators to an exceptionally high risk of post-traumatic stress and moral injury. We argue that states, therefore, have an obligation to ’ethically armour’ their special operators against moral injury, a battlefield hazard that is just as deadly as a sniper’s bullet. Leaders at every level must ensure that SOF are educated and trained in the moral complexity of their profession. Given the emergence of SOF power as an essential instrument of statecraft, the political sensitivity that is often a feature of special operations, and the independent and improvisational decision-making that is necessary for special operations to succeed, a casual acquaintance with the ethics of their craft is insufficient. As with other skillsets that SOF are required to master, mastery in the ethics of special ops must be the standard.

In Chapter 3, we turn to recoveries, a state’s efforts to repatriate its citizens held by a hostile power or at risk of being captured. Aphorisms like ’we leave no one behind’ or ’we don’t negotiate with terrorists’ seem honourable and even righteous. Yet military operations to recover either prisoners of war (e.g., the 1970 US Special Forces raid of the Son Tay POW camp in North Vietnam) or hostages (e.g., the 1980 British SAS rescue of hostages taken at the Iranian Embassy in London) typically involve significant risk to the rescuers, non-combatants who may be in the vicinity of a rescue operation, and even the hostages or prisoners themselves who are sometimes killed in the crossfire. Ethically speaking, how should we weigh those risks against alternatives such as payment of a ransom or a negotiated prisoner exchange?

Chapter 4 examines reconnaissance operations. Reconnaissance seems, prima facia, to be the least problematic of the special operations mission set from an ethical perspective. Intelligence gathering is universally acknowledged as a legitimate operation in war and peace. Done well and according to plan, reconnaissance missions involve no loss of life and often provide information that enables more discriminate targeting. But reconnaissance operations conducted by SOF, ’special reconnaissance (SR)’, often involve peculiar moral risks. SR missions are typically carried out over a long duration, deep in unfriendly territory, and with limited or tenuous means of support available. If a SOF reconnaissance team is compromised, the consequences are particularly pernicious. Given that compromise could result in mission failure, national embarrassment, imprisonment, or death, are there moral limits to what SOF teams can do to prevent detection? For example, are SR teams ever justified in killing, detaining, or otherwise harming non-combatants to avoid discovery? Wearing camouflage is generally accepted as ethically unproblematic, but what about the practice of ’hiding in plain sight’ by falsifying personal identification, donning local garb, or even dressing in the uniform or distinctive clothing of the enemy? At what point does concealment of identity become perfidy?

In Chapter 6, we shift our focus from the individual to the unit level of analysis and consider the ethics of special operations through the lens of statecraft. Specifically, we consider a leader’s decision to employ SOF outside of an ongoing conflict, violating the political sovereignty and territorial integrity of a state with which the aggressor is nominally at peace. What moral framework should guide such a decision? The jus ad bellum convention sets an appropriately high bar for states to justify their decisions to use military force. But should the same high bar we apply to a full-scale war in which tens of thousands may perish also apply to a leader’s decision to launch a stand-alone special operations raid in which maybe a half-dozen people will be killed? What if that leader believes that a discrete application of SOF power now will prevent full-scale war later? Chapter 6 explores how states employ SOF as a force-short-of-war option, the tensions that arise when applying ad bellum principles to these operations, and the advantages and risks inherent in adopting distinct convention for force short of war – a jus ad vim convention – as an alternative to jus ad bellum.