War’s Means and the Importance of Fighting Well
The purpose of the war convention is to establish the duties of belligerent states, of army commanders, and of individual soldiers with reference to the conduct of hostilities. I have already argued that these duties are precisely the same for states and soldiers fighting wars of aggression and wars of defense. In our judgments of the fighting, we abstract from all consideration of the justice of the cause. We do this because the moral status of individual soldiers on both sides is very much the same: they are led to fight by their loyalty to their own states and by their lawful obedience. They are most likely to believe that their wars are just, and while the basis of that belief is not necessarily rational inquiry but, more often, a kind of unquestioning acceptance of official propaganda, nevertheless they are not criminals; they face one another as moral equals.
The domestic analogy is of little help here. War as an activity (the conduct rather than the initiation of the fighting) has no equivalent in a settled civil society. It is not like an armed robbery, for example, even when its ends are similar in kind. Indeed, it is the contrast rather than the correspondence that illuminates the war convention. The contrast is readily explicated; we have only to think about the following sorts of cases. (1) In the course of a bank robbery, a thief shoots a guard reaching for his gun. The thief is guilty of murder, even if he claims that he acted in self-defense. Since he had no right to rob the bank, he also had no right to defend himself against the bank’s defenders. He is no less guilty for killing the guard than he would be for killing an unarmed bystander—a customer, say, depositing his money. The thief’s associates might praise him for the first killing, which was in their terms necessary, and condemn him for the second, which was wanton and dangerous. But we won’t judge him in that way, because the idea of necessity doesn’t apply to criminal activity: it was not necessary to rob the bank in the first place.
Now, aggression is also a criminal activity, but our view of its participants is very different: (2) In the course of an aggressive war, a soldier shoots another soldier, a member of the enemy army defending his homeland. Assuming a conventional firefight, this is not called murder; nor is the soldier regarded after the war as a murderer, even by his former enemies. The case is in fact no different from what it would be if the second soldier shot the first. Neither man is a criminal, and so both can be said to act in self-defense. We call them murderers only when they take aim at noncombatants, innocent bystanders (civilians), wounded or disarmed soldiers. If they shoot men trying to surrender or join in the massacre of the inhabitants of a captured town, we have (or ought to have) no hesitation in condemning them. But so long as they fight in accordance with the rules of war, no condemnation is possible.
The crucial point is that there are rules of war, though there are no rules of robbery (or of rape or murder). The moral equality of the battlefield distinguishes combat from domestic crime. If we are to judge what goes on in the course of a battle, then, “we must treat both combatants,” as Henry Sidgwick has written, “on the assumption that each believes himself in the right.” And we must ask “how the duties of a belligerent, fighting in the name of justice, and under the restraints of morality, are to be determined.”1 Or, more directly: without reference to the justice of their cause, how can soldiers fight justly?
The Argument of Henry Sidgwick
Sidgwick answers this question with a twofold rule that neatly sums up the most common utilitarian view of the war convention. In the conduct of hostilities, it is not permissible to do “any mischief which does not tend materially to the end [of victory], nor any mischief of which the conduciveness to the end is slight in comparison with the amount of the mischief.”2 What is being prohibited here is excessive harm. Two criteria are proposed for the determination of excess. The first is that of victory itself, or what is usually called military necessity. The second depends upon some notion of proportionality: we are to weigh “the mischief done,” which presumably means not only the immediate harm to individuals but also any injury to the permanent interest of mankind, against the contribution that mischief makes to the end of victory.
The argument as stated, however, sets the interests of individuals and of mankind at a lesser value than the victory that is being sought. Any act of force that contributes in a significant way to winning the war is likely to be called permissible; any officer who asserts the “conduciveness” of the attack he is planning is likely to have his way. Once again, proportionality turns out to be a hard criterion to apply, for there is no ready way to establish an independent or stable view of the values against which the destruction of war is to be measured. Our moral judgments (if Sidgwick is right) wait upon purely military considerations and will rarely be sustained in the face of an analysis of battle conditions or campaign strategy by a qualified professional. It would be difficult to condemn soldiers for anything they did in the course of a battle or a war that they honestly believed, and had good reason to believe, was necessary, or important, or simply useful in determining the outcome. Sidgwick apparently thought this conclusion inescapable, once we agree to make no judgment as to the relative utility of different outcomes. For then we must grant that soldiers are entitled to try to win the wars they are entitled to fight. That means that they can do what they must to win; they can do their utmost, so long as what they do is actually related to winning. Indeed, they should do their utmost, so as to end the fighting as quickly as possible. The rules of war rule out only purposeless or wanton violence.
That is not, however, a small achievement. If it were made effective in practice, it would eliminate a great deal of the cruelty of war. For it has to be said of many of the people who die in the course of a war, soldiers as well as civilians, that their deaths do not “tend materially to the end [of victory]” or that the contribution they make to that end is “slight” indeed. These deaths are nothing more than the inevitable consequence of putting deadly weapons into the hands of undisciplined soldiers, and armed men into the hands of stupid or fanatical generals. Every military history is a tale of violence and destruction out of all relation to the requirements of combat: massacres on the one hand and, on the other, ill-planned and wasteful battles that are little better than massacres.
Sidgwick’s twofold rule seeks to impose an economy of force. It requires discipline and calculation. Any intelligent military strategy, of course, imposes the same requirements. On Sidgwick’s view, a good general is a moral man. He keeps his soldiers in check, keyed for battle, so that they don’t run amuck among civilians; he sends them to fight only after having thought through a battle plan, and his plan is aimed at winning as quickly and as cheaply as possible. He is like General Roberts at the battle of Paardeberg (in the Boer War), who called off the frontal assaults on the Boer trenches ordered by Kitchener, his second in command, saying that the loss of life “did not appear . . . to be warranted by the exigencies of the situation.”3 A simple decision, though not as common in war as one might expect. I don’t know if it was made out of any deep concern for human life; perhaps Roberts was thinking only of his honor as a general (who does not send his men to be slaughtered), or perhaps he was worried about the capacity of the troops to renew the fighting on the following day. It was in any case exactly the sort of decision that Sidgwick would require.
But though the limits of utility and proportionality are very important, they do not exhaust the war convention; indeed, they don’t explain the most critical of the judgments we make of soldiers and their generals. If they did, moral life in wartime would be a great deal easier than it is. The war convention invites soldiers to calculate costs and benefits only up to a point, and at that point it establishes a series of clearcut rules—moral fortifications, so to speak, that can be stormed only at great moral cost. Nor can a soldier justify his violation of the rules by referring to the necessities of his combat situation or by arguing that nothing else but what he did would have contributed significantly to victory. Soldiers who reason in that way can never violate Sidgwick’s limits, since all that Sidgwick requires is that soldiers . . . reason in that way. But justifications of this kind are not acceptable, or not always acceptable, either in law or morality. They have been “generally rejected,” according to the U.S. Army’s handbook of military law, “ . . . for acts forbidden by the customary and conventional laws of war, inasmuch as [these laws] have been developed and framed with consideration for the concept of military necessity.”4 Now, what sorts of acts are these, and what are the grounds for forbidding them, if Sidgwick’s criteria don’t apply? I will have to explain later on how “military necessity” is taken into account in framing the prohibitions; I am concerned now with their general character.
Belligerent armies are entitled to try to win their wars, but they are not entitled to do anything that is or seems to them necessary to win. They are subject to a set of restrictions that rest in part on the agreements of states but that also have an independent foundation in moral principle. I don’t think that these restrictions have ever been expounded in utilitarian fashion, though it is no doubt a good thing that they be expounded and that military conduct be shaped to their requirements. When we abstract from the utility of particular outcomes, focus exclusively on jus in bello, utilitarian calculations are radically constrained. It might be said that if every war in a series extending indefinitely into the future were to be fought with no other limits than those proposed by Sidgwick, the consequences for mankind would be worse than if every war in that same series were fought within limits fixed by some additional set of prohibitions.a But saying that does not suggest which prohibitions are the right ones. And any effort to figure out the right ones by calculating the likely effects over time of fighting wars in certain ways (an enormously difficult task) is sure to run up against unconstrained utilitarian arguments: that victory here and now will end the series of wars, or reduce the probability of future fighting, or avoid immediate and horrifying consequences. Hence anything should be permitted that is useful and proportionate to the victory being sought. Utilitarianism is obviously most effective when it points to outcomes about which we have (relatively) clear ideas. For that reason, it is more likely to tell us that the rules of war should be overridden in this or that case than it is to tell us what the rules are—beyond Sidgwick’s minimum injunctions which can’t and don’t ever have to be overridden.
Until the constraints are lifted and the substantial effects of victory and defeat are weighed in the balance, utilitarianism provides only a general endorsement of the war convention (the twofold rule and any others commonly accepted); after that, it is unlikely to specify rules at all but only particular courses of action. When to lift the constraints is one of the hardest questions in the theory of war. I will try to answer it in Part Four, and I will describe at that time the positive role of utilitarian calculation: to mark out those special cases where victory is so important or defeat so frightening that it is morally, as well as militarily, necessary to override the rules of war. But such an argument is not possible until we have recognized rules beyond Sidgwick’s and understood their moral force.
Meanwhile, it is worth dwelling for a moment on the precise nature of the general endorsement. The utility of fighting limited wars is of two sorts. It has to do not only with reducing the total amount of suffering, but also with holding open the possibility of peace and the resumption of pre-war activities. For if we are (at least formally) indifferent as to which side wins, we must assume that these activities will in fact be resumed and with the same or similar actors. It is important, then, to make sure that victory is also in some sense and for some period of time a settlement among the belligerents. And if that is to be possible, the war must be fought, as Sidgwick says, so as to avoid “the danger of provoking reprisals and of causing bitterness that will long outlast” the fighting.5 The bitterness that Sidgwick has in mind might, of course, be the consequence of an outcome thought to be unjust (like the annexation of Alsace-Lorraine in 1871), but it may also result from military conduct thought to be unnecessary, brutal or unfair, or simply “against the rules.” So long as defeat follows from what are widely regarded as legitimate acts of war, it is at least possible that it will leave behind no festering resentment, no sense of scores unsettled, no deeply felt need for individual or collective revenge. (The government or officers’ corps of the defeated state may have reasons of its own to encourage such feelings, but that is another matter.) An analogy might be drawn, once again, with a family feud, its origin long forgotten, its justice no longer at issue. A feud of this sort may be carried on for many years, marked by the occasional killing of a father or a grown-up son, an uncle or a nephew, first of one family, then of the other. So long as nothing more happens, the possibility of reconciliation remains open. But if someone in a fit of anger or passion, or even by accident or mistake, kills a woman or a child, the result may well be a massacre or a series of massacres, not stopping until one of the families is wiped out or driven away.6 The case is at least similar to intermittent war among states. Some limits must be commonly accepted, and more or less consistently maintained, if there is ever to be a peace short of the complete submission of one of the belligerents.
It is probably true that any limits will be useful here, so long as they are in fact commonly accepted. But no limit is accepted simply because it is thought that it will be useful. The war convention must first be morally plausible to large numbers of men and women; it must correspond to our sense of what is right. Only then will we recognize it as a serious obstacle to this or that military decision, and only then can we debate its utility in this or that particular case. For otherwise we would not know which obstacle out of the infinite number that are conceivable, and the very large number that are historically recorded, is to be the subject of our debates. With regard to the rules of war, utilitarianism lacks creative power. Beyond the minimal limits of “conduciveness” and proportionality, it simply confirms our customs and conventions, whatever they are, or it suggests that they be overridden; but it does not provide us with customs and conventions. For that, we must turn again to a theory of rights.
The importance of rights may best be suggested if we look at a historical example placed, as it were, on the margin of Sidgwick’s argument. Consider, then, the case of the Moroccan soldiers fighting with Free French forces in Italy in 1943. These were mercenary troops who fought on terms, and the terms included license to rape and plunder in enemy territory. (Italy was enemy territory until the Badoglio regime joined the war against Germany in October, 1943; I don’t know if the license was then withdrawn; if so, the withdrawal seems to have been ineffective.) A large number of women were raped; we know the number, roughly, because the Italian government later offered them a modest pension.7 Now, the argument for giving soldiers privileges of this sort is a utilitarian one. It was made long ago by Vitoria in the course of a discussion of the right of sack: it is not unlawful to put a city to sack, he says, if it is “necessary for the conduct of the war . . . as a spur to the courage of the troops.”8 If this argument were applied to the case at hand, Sidgwick might respond that “necessary” is probably the wrong word here and that the contribution of rape and plunder to military victory is “slight” in comparison with the harm caused to the women involved. That is not an unpersuasive response, but it is not entirely convincing either, and it hardly gets at the root of our condemnation of rape.
What is it we object to in the license given those Moroccan soldiers? Surely our judgment does not hang on the fact that rape is only a trivial or inefficient “spur” to masculine courage (if it is a spur at all: I doubt that brave men are the most likely rapists). Rape is a crime, in war as in peace, because it violates the rights of the woman who is attacked. To offer her as bait to a mercenary soldier is to treat her as if she were not a person at all but a mere object, a prize or trophy of war. It is the recognition of her personality that shapes our judgment.b And this is true even in the absence of a philosophical conception of human rights, as the following passage from the Book of Deuteronomy—the first attempt that I have found to regulate the wartime treatment of women—clearly indicates:9
When thou goest forth to battle against thine enemies, and the Lord thy God deliverest them into thy hands, and thou carriest them away captive, and seest among the captives a woman of goodly form, and thou hast a desire unto her, and wouldst take her to thee to wife; then thou shalt bring her home to thy house . . . and she shall . . . bewail her father and mother a full month; and after that thou mayest go in unto her, and be her husband, and she shall be thy wife. And . . . if thou have no delight in her, then thou shalt let her go whither she will; but thou shalt not sell her . . . for money, thou shalt not deal with her as a slave . . .
This falls far short of contemporary views, though I expect it would be as difficult to enforce today as it was in the time of the Judean kings. Whatever theological or sociological account of the rule is appropriate, it is clear that what is at work here is a conception of the captive woman as a person who must be respected, despite her capture; hence the month of mourning before she is sexually used, the requirement of marriage, the ban on slavery. She has lost some of her rights, we might say, but not all of them. Our own war convention requires a similar understanding. Both the prohibitions that are covered by Sidgwick’s twofold rule and those that lie beyond it are properly conceptualized in terms of rights. The rules of “fighting well” are simply a series of recognitions of men and women who have a moral standing independent of and resistant to the exigencies of war.
A legitimate act of war is one that does not violate the rights of the people against whom it is directed. It is, once again, life and liberty that are at issue, though we are now concerned with these two as they are individually rather than collectively possessed. I can sum up their substance in terms I have used before: no one can be forced to fight or to risk his life, no one can be threatened with war or warred against, unless through some act of his own he has surrendered or lost his rights. This fundamental principle underlies and shapes the judgments we make of wartime conduct. It is only inadequately expressed in positive international law, but the prohibitions established there have this principle as their source. Lawyers sometimes talk as if the legal rules were simply humanitarian in character, as if the ban on rape or on the deliberate killing of civilians were nothing more than a piece of kindness.10 But when soldiers respect these bans, they are not acting kindly or gently or magnanimously; they are acting justly. If they are humanitarian soldiers, they may indeed do more than is required of them—sharing their food with civilians, for example, rather than merely not raping or killing them. But the ban on rape and murder is a matter of right. The law recognizes this right, specifies, limits, and sometimes distorts it, but doesn’t establish it. And we can recognize it ourselves, and sometimes do, even in the absence of legal recognition.
States exist to defend the rights of their members, but it is a difficulty in the theory of war that the collective defense of rights renders them individually problematic. The immediate problem is that the soldiers who do the fighting, though they can rarely be said to have chosen to fight, lose the rights they are supposedly defending. They gain war rights as combatants and potential prisoners, but they can now be attacked and killed at will by their enemies. Simply by fighting, whatever their private hopes and intentions, they have lost their title to life and liberty, and they have lost it even though, unlike aggressor states, they have committed no crime. “Soldiers are made to be killed,” as Napoleon once said; that is why war is hell.c But even if we take our standpoint in hell, we can still say that no one else is made to be killed. This distinction is the basis of the rules of war.
Everyone else retains his rights, and states remain committed, and entitled, to defend these rights whether their wars are aggressive or not. But now they do this not by fighting but by entering into agreements among themselves (which fix the details of noncombatant immunity), by observing these agreements and expecting reciprocal observance, and by threatening to punish military leaders or individual soldiers who violate them. This last point is crucial for an understanding of the war convention. Even an aggressor state can rightly punish war criminals—enemy soldiers, for example, who rape or kill civilians. The rules of war apply with equal force to aggressors and their adversaries. And we can now see that it is not merely the moral equality of soldiers that requires this mutual submission; it is also the rights of civilians. Soldiers fighting for an aggressor state are not themselves criminals: hence their war rights are the same as those of their opponents. Soldiers fighting against an aggressor state have no license to become criminals: hence they are subject to the same restraints as their opponents. The enforcement of these restraints is one of the forms of law enforcement in international society, and the law can be enforced even by criminal states against “policemen” who deliberately kill innocent bystanders. For these bystanders do not forfeit their rights when their states wrongly go to war. An army warring against aggression can violate the territorial integrity and political sovereignty of the aggressor state, but its soldiers cannot violate the life and liberty of enemy civilians.
The war convention rests first on a certain view of combatants, which stipulates their battlefield equality. But it rests more deeply on a certain view of noncombatants, which holds that they are men and women with rights and that they cannot be used for some military purpose, even if it is a legitimate purpose. At this point, the argument is not entirely dissimilar from that which obtains in domestic society, where a man fighting in self-defense, for example, is barred from attacking or injuring innocent bystanders or third parties. He can attack only his attackers. In domestic society, however, it is relatively easy to distinguish bystanders and third parties, whereas in international society, because of the collectivist character of states and armies, the distinction is harder to make. Indeed, it is often said that it cannot be made at all, for soldiers are only coerced civilians, and civilians are willing supporters of their armies in the field. And then it cannot be what is due to the victims but only what is necessary for the battle that determines our judgments of wartime conduct. Here is the critical test, then, for anyone who argues that the rules of war are grounded in a theory of rights: to make the combatant/noncombatant distinction plausible in terms of the theory, that is, to provide a detailed account of the history of individual rights under the conditions of war and battle—how they are retained, lost, exchanged (for war rights) and recovered. That is my purpose in the chapters that follow.