Prieto Rudolphy: War and Coercion

Marcela Prieto Rudolphy (Univ. of Southern California - Law) has posted War and Coercion (Southern California Law Review, forthcoming). Here's the abstract:

Compelled service in hostile forces is prohibited by International Humanitarian Law (IHL). In fact, in the context of an international armed conflict, it is a war crime to compel prisoners of war or other protected persons to serve in the forces of a hostile power and to compel participation in military operations against the person’s own country or forces. However, conscription—or compelled service in military forces—of a state’s own citizens is not prohibited under international law. In fact, conscription, some aspects of which are regulated by International Human Rights Law, is generally legitimate.

This asymmetry—whereby compelling protected persons to fight or serve in the forces of a hostile power is a war crime, but compelling one’s own citizens isn’t—has puzzling implications. Take the example of Russia’s invasion of Ukraine. It is a war crime for Ukraine to compel Russian prisoners of war to fight on behalf of Ukraine, even though Ukraine is fighting a lawful war of self-defense. Yet, it is not a war crime for Russia to compel its own citizens to fight, even though Russia is fighting an unlawful war of aggression.

Can we make moral sense of this asymmetric regime regarding compelled service in armed forces? Is the regime morally coherent? In order to make moral sense of the regime, two arguments must succeed. First, we must argue that it matters greatly whether individuals are compelled to fight in hostile forces or in the armed forces of their own state. Second, we must argue that the nature of the war they are compelled to serve in—whether the war is legal or illegal—does not matter at all.

The article argues that the second argument cannot but fail, but it is possible to argue that compelled service in hostile forces is morally wrong and often morally worse than compelled service in the armed forces of one’s own state. It is morally worse because it is morally worse to harm those who are vulnerable and defenseless, like those who have fallen into the hands of a party to the conflict. And it is morally wrong because non-citizens lack duties to fight on behalf of other states. However, what makes compelled service in hostile forces morally wrong also makes conscription morally wrong. That is, what is wrong about compelled service in hostile forces is also present in the state’s conscription of its own citizens.

This article thus argues that the current regime concerning compelled service in armed forces is, in fact, morally incoherent. To render the regime morally coherent, international law should (1) appropriately distinguish between conscription to serve in legal wars and conscription to serve in illegal wars, and (2) generally prohibit compelled service in armed forces.