The Moral Status of Combatants

A New Theory of Just War

Michael Skerker

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000092318
• Edition: 1
• Topic: Philosophie
• Subtopic: Éthique et philosophie morale

This book develops a new contractualist foundation for just war theory, which defends the traditional view of the moral equality of combatants and associated egalitarian moral norms.

Traditionally it has been viewed that combatants on both sides of a war have the same right to fight, irrespective of the justice of their cause, and both sides must observe the same restrictions on the use of force, especially prohibitions on targeting noncombatants. Revisionist philosophers have argued that combatants on the unjust side of a war have no right to fight, that pro-war civilians on the unjust side might be targetable, and that lawful combatants on the unjust side might in principle be liable to prosecution for their participation on the unjust side. This book seeks to undercut the revisionist project and defend the traditional view of the moral equality of combatants. It does so by showing how revisionist philosophers fail to build a strong foundation for their arguments and misunderstand that there is a moral difference between collective military violence and a collection of individually unjustified violent actions. Finally, the book develops a theory defending the traditional view of military ethics based on a universal duty of all people to support just institutions.

This book will be of much interest to students of just war theory, ethics philosophy, and war studies.

Part I

Revisionist just war theory

1 Introduction

The challenge of revisionist just war theory

Philosophers have engaged in moral reflection about war since ancient times. This book presents an argument about how such reflection should proceed. The central reference point for this argument will be the moral status of combatants, particularly the moral status of combatants participating in unjust wars.

According to the ancient tradition known in the West as jus ad bellum (justice of war), in order to be just, wars have to be declared by a legitimate authority, acting with a right intention, in prosecution of a just cause. The war must be the last resort to correct some profound injustice, consequent to a proportionality calculation in which the overall good accomplished by the war outweighs the damage done by the war, where the prosecuting state or political entity has a reasonable hope of success. Some formulations also include an intention or ability to fight the war using just means.

The consensus for the last three to four centuries in the Western just war tradition is that all combatants obeying the laws and customs of war are moral equals, no matter whether their political entity is prosecuting a just or an unjust war.¹ This designation has a restricted meaning. Combatants on opposite sides of the war may be morally unequal in the sense that one group’s political entity may have a just cause for war and the other may lack a just cause for war. In this way, two lawyers may be morally unequal in the sense that one acts in the interests of a guilty client and the other, an innocent client.² The combatants themselves may be unequal in terms of their courage, patience, honesty, and the like. In the same arena of personal character, there is no moral equality between combatants who commit war crimes like perfidy, rape, or the deliberate targeting of noncombatants, and those who refrain from such actions.

The moral equality of combatants employs a restricted sense of morality regarding privileges and liabilities. The traditionalist view in the just war tradition is that during wartime, combatants on either side of a war are equally permitted to kill their enemies anywhere and at any time except when they have surrendered or are incapacitated. They are also equally morally and legally liable to be attacked at any time except following their surrender or incapacitation. This standard for the use of violence is markedly different than conventional justifications of self- or other-defense in civilian contexts. Unlike civilians in standard cases of self- or other-defense, combatants can be killed when they are performing justified actions, such as defending themselves or their communities against unjust attack. They can be killed even if they are not a direct threat to the invaders, due to their incompetence, retreat, non-lethal specializations, or their distance from adversaries. Contrary to standard justifications of violence in civilian contexts, in war, corporate liabilities and privileges are universally afforded to (at least) all conventional combatants involved in the war, irrespective of their individual personal qualities, permitting lethal violence regardless of its ultimate political purpose. Neither side’s combatants—neither German nor Polish, Israeli nor Syrian, American nor Iraqi—wrong the other’s by engaging in, contributing to, or directing lethal violence. Whether combatants fight for an unjust or just cause, the argument is that they are neither consistently in the epistemic position to judge nor endowed with the professional authority to make determinations about the justice of the war. Since they are obliged by voluntary oaths of service or bonds of conscription to obey the orders of their superiors, the culpability for the collective action combatants execute is borne almost exclusively by the political leaders who have the knowledge and authority to make monumental foreign policy decisions. Combatants can only be justly punished for violating the norms of jus in bello (just warfighting) and the laws expressive of those norms.

This convention of combatant moral equality has come in for renewed attention in recent years, especially since the Iraq War of 2003. The convention, and its most prominent twentieth-century advocate, Michael Walzer, have been exposed to sustained, systemic critiques by “revisionist” philosophers. In broad terms, these theorists argue that combatants should not enjoy moral blamelessness and even legal immunity for fighting in unjust wars. This follows because combatants are responsible, to varying degrees, for judging the justice of wars in which they might serve and for refusing to serve in unjust wars. Failing that, some or all the actions the service member performs contributing to the main strategic thrust of that war are unjustified, making these service personnel individually and unilaterally liable to the defensive violence of the just side.

As the revisionists and many others use the term, liability to defensive harm is the condition of being targetable with harm without being morally wronged when that harm accomplishes some good, usually averting an unjust threat or harm. Liable parties may be targeted by people who are unjustly harmed or threatened by the liable party or by agents acting on behalf of the wronged party. The liable party is liable to a level of harm that is proportionate to the harm she is inflicting or threatening and that is necessary for the defender or a third party to use in order to halt the unjust harm or threat. The liable party no longer retains a right of self-defense and so is not permitted to defend herself or counter-attack against the non-liable party’s proportionate defensive violence nor ask for defensive help by a third party.

Revisionists argue that a combatant fighting for an unjust cause has no right to kill enemy combatants who are merely defending themselves and their homeland. Like all people, combatants incur liability to defensive violence when they are responsible (in some form or another) for an unjust threat without justification that makes it necessary and proportionate for a non-liable defender to resort to violent self- or other-defense. A threat is called unjust because of what it might do to the non-liable defender; it is unjustified if the agent lacks strong moral reasons for carrying out the action. Generally speaking, justified violent action, such as that performed by the non-liable defender, does not incur liability to defensive violence. So combatants defending themselves and their citizens from an unjust attack no more incur liability than a person defending herself or a friend against a mugger. What is more, the defender’s non-liability coupled with the unjust party’s liability denies permission to the unjust party to fight in counter-attack, despite the fact that the defender’s violence physically threatens the unjust party. Just as a mugger is not granted permission to fight back against his victim and call it “self-defense,” neither is the unjust army newly permitted to fight once enemy personnel begin to defend themselves (McMahan 2009: 14).

Further, since ordinary service members are responsible for judging the justice of the wars to which they might be deployed, the traditional post-Westphalian distinction between jus in bello (justice in war, or just warfighting) and jus ad bellum (justice of war) fails to demarcate separate moral responsibilities for most service members and political leaders, respectively. (“Service personnel” are members of the military. “Combatants” are people who can be permissibly attacked in wartime. Combatants might include service personnel, members of organized sub-state militant groups, intelligence agency personnel, and civilians who attack combatants. I will refer to “service personnel” rather than “combatants” when discussing military members in peace-time and especially in the fraught moment when they receive deployment orders and have to decide what to do about their pending combatancy status—deploy or refuse, resign, desert, etc.) Revisionists typically argue that no service member should feel obligated by professional duty to deploy to a war simply because he was so ordered. He cannot foist responsibility for the war on his political leaders. Depending on his personal responsibility, measured in various ways, the unjust combatant may be a culpable attacker, an innocent threat, or a partially innocent threat (like an attacker who wrongly thinks his life is endangered by his victim). In theory, some combatants deserve to be punished in post-bellum war crime trials for participating in unjust wars, even if they did nothing to violate the traditional rules of just warfighting.

Finally, revisionists typically argue that the key principles of jus in bello, discrimination and proportionality, are wrongly formulated by traditionalist just war theorists. Per discrimination, the combatant/noncombatant distinction does not correspond to groups of people liable to, and immune from, being killed, respectively. Regarding proportionality, the unjust side’s tactical goals do not count as “goods” that can be balanced against evils in a proportionality calculation (where one can proceed with an otherwise-permissible action if the good effects outweigh the bad effects). Regarding discrimination, military personnel on the just side of war are non-liable to violence, for the reason just mentioned, and some noncombatants on the unjust side may be even more liable than their military’s combatants for demanding, supporting, or for formally launching the war. As an example of the problem with proportionality, imagine a conscientious Wehrmacht officer in 1939 who only orders attacks on Polish military targets in cases where the military benefits for the German side are proportionate to the harm done to Polish civilians. He still fails to perform morally right actions because the Wehrmacht’s tactical goals do not count as goods in a proportionality calculation. Nothing done to further the unjust aims of the war can be a “good” (Tadros 2012: 259–277, 2014: 42–77; Bazargan 2013: 177–195, 2014: 114–136; Strawser 2013; Bomann-Larsen 2004: 142–160; Norman 1995; Frowe 2014, 2011: 530–546, 2015: 1–16; Fabre 2009: 36–63, 2012, 2014: 90–114; Gross 2010; Garren 2007: 8–11; Lichtenberg 2008: 112–130; McPherson 2004: 485–506; Rodin 2002, 2011: 74–110, 2008: 44–68; Coady 2008: 153–175; Øverland 2006: 455–475; Mapel 2004: 81–86; McMahan 1994a: 252–290, 1994b: 193–221, 2004: 75–80, 2005a: 386–405, 2005b: 1–21, 2006a: 377–393, 2006b: 13–17, 2007: 50–59, 2008a: 19–43, 2008b: 227–244, 2009, 2011: 544–559, 2014a: 428–453, 2014b: 104–137, 2014c: 115–156).

If legally implemented, revisionist ideas would upset centuries-old laws of war, exposing civilians to direct targeting by combatants, inviting service personnel to refuse deployment orders based on their personal assessment of the war’s justice, making deterrence and war-planning difficult since leaders could not legally compel service personnel to deploy, and exposing all combatants on the unjust side of the war to prosecution following the war.³ Despite the radicalism of their claims and the destabilizing potential of their arguments, revisionist just war theory today is arguably the dominant school of thought among analytic philosophers with an interest in war.

The revisionists articulate an intuitively powerful argument. It might strike some readers as counter-intuitive that grandpa had no more or less a right to fight the Nazis than the Nazis had to fight him. It seems very strange to say that soldiers fighting for an aggressive, genocidal regime have the same right to kill their enemy as troops defending their democratic countries from invasion. Yet a reader familiar with conventional just war theory, coming from a legal, international relations, or political science background, may be surprised by the revisionists’ conclusions and methods. As some revisionists acknowledge, their conclusions are impractical, counter-intuitive, and unsettling to readers accustomed to reverential discussion of military personnel and military service.

How do the revisionists reach their conclusions? Let us start with the position revisionists reject. Advocates of the moral equality of combatants and associated egalitarian jus in bello norms (i.e., norms extended in equal measure to both sides) say that the morality of a war, specifically, the morality of deciding to wage or continue to wage a war, is independent of the morality of fighting the war, except in cases where the widespread use of unjust tactics makes the entire war unjust. Combatants’ liability to being targeted with proportionate and necessary amounts of violence has nothing to do with the collective goals they pursue. Instead, their liability depends on the material threat they directly or (even very) indirectly pose to adversary combatants. Their liability to punishment is linked only to violations of jus in bello that are directly in their control or, consequent to their unlawful orders, affected by most of the standard conditions of culpability countenanced by criminal law.

By contrast, the thesis uniting revisionists is that liability to being targeted with defensive harm and, potentially, ex post facto punishment is not independent of the ends combatants promote with their actions (or even their mere presence in the armed forces).⁴ They are liable to varying degrees of harm if they are responsible (in some specified way) for contributing to an unjust threat without justification. In many cases, there will have to be an unusually strong moral reason to justify imposing an unjust threat on innocent people, such as risking “collateral” (foreseen, but unintentional) killing of civilians while targeting a vital military target in a just war (McMahan 2005a: 400). Typically, one is unjustified in imposing an unjust threat.

Combatants are not liable to harm if their violent actions or violence-supporting actions are justified, on the revisionist line. This standard applies to all combatants involved in a war and so even combatants on the just side unjustifiably participating in an unjust intermediate aim like a massacre of noncombatants are liable to defensive violence. By the same token, combatants on the unjust side are perhaps non-liable if they are currently pursuing an intermediate just aim like rendering aid to refugees.⁵ These are atypical cases, qualifications to the revisionists’ main point. Revisionists are in a position to make a very powerful argument in the more typical scenario where most combatants are contributing to the main strategic thrust of a war. To express this argument, let us first note that our conventional reference to a war like “the Russo-Japanese War” is really a combined reference to two wars, e.g., Russia’s war against Japan and Japan’s war against Russia (Bazargan 2011: 514). In many cases, both sides are fighting unjust wars (such as in the Russo-Japanese War, where both sides had imperial designs on Korea). Yet in wars where one political entity is fighting an unjust war and its adversary is fighting a just war, the revisionist theorist knows a priori that the number of non-liable personnel on the just side will vastly out-number those on the unjust side. All the adult, sane⁶ personnel contributing to the main strategic thrust of the unjust side are liable to defensive harm to varying degrees since their actions are unjustified and all the personnel pursuing the main strategic thrust of the just war are non-liable to harm because their contributory actions are justified. Call this the revisi...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgments
• PART I: Revisionist just war theory
• PART II: The foundations of the moral equality of combatants
• PART III: The moral equality of combatants
• Index