War Crimes: Soldiers and Their Officers
We are concerned now with the conduct of war and not its overall justice. For soldiers, as I have already argued, are not responsible for the overall justice of the wars they fight; their responsibility is limited by the range of their own activity and authority. Within that range, however, it is real enough, and it frequently comes into question. “There wasn’t a single soldier,” says an Israeli officer who fought in the Six Day War, “who didn’t at some stage have to decide, to choose, to make a moral decision . . . quick and modern though [the war] was, the soldier was not turned into a mere technician. He had to make decisions that were of real significance.”1 And when faced with decisions of that sort, soldiers have clear obligations. They are bound to apply the criteria of usefulness and proportionality until they come up against the basic rights of the people they are threatening to kill or injure, and then they are bound not to kill or injure them. But judgments about usefulness and proportionality are very difficult for soldiers in the field. It is the doctrine of rights that makes the most effective limit on military activity, and it does so precisely because it rules out calculation and establishes hard and fast standards. Hence in my initial cases I will focus on specific violations of rights and on the defenses that soldiers commonly offer for these violations. The defenses are basically of two sorts. The first refers to the heatedness of battle and the passion or frenzy it engenders. The second refers to the disciplinary system of the army and the obedience it requires. These are serious defenses; they suggest the loss of self that is involved in warfare, and they remind us that most soldiers most of the time have not chosen the combat and discipline they endure. Where is their freedom and responsibility?
But there is a related issue that I must consider before trying to mark out the realm of freedom from the coercions and hysteria of war. The war convention requires soldiers to accept personal risks rather than kill innocent people. This requirement takes different forms in different combat situations, and I have already discussed these in considerable detail; my concern now is with the requirement itself. The rule is absolute: self-preservation in the face of the enemy is not an excuse for violations of the rules of war. Soldiers, it might be said, stand to civilians like the crew of a liner to its passengers. They must risk their own lives for the sake of the others. No doubt this is easy to say, less easy to do. But if the rule is absolute, the risks are not; it is a question of degree; the crucial point is that soldiers cannot enhance their own security at the expense of innocent men and women.a This might be called an obligation of soldiering as an office, but it is a hard question whether one can rightly be said to assume such obligations when one comes into the office as unwillingly as most soldiers do. Imagine a liner manned by kidnapped sailors: would the members of such a crew be bound, as the ship was sinking, to see to the safety of the passengers before seeing to their own?
I am not sure how to answer that question, but there is a crucial difference between the work of coerced crew members and that of military conscripts: the first group is not in the business of sinking ships, the second is. Conscripts impose risks on innocent people; they are themselves the immediate source of the danger and they are its effective cause. And so it is not a question of saving themselves, letting others die, but of killing others in order to improve their own odds. Now that they cannot do, because that no man can do. Their obligation isn’t in practice mediated by the office of soldiering. It arises directly from the activity in which they are engaged, whether that activity is voluntary or not, or at least it arises so long as we regard soldiers as moral agents and even if we regard them as coerced moral agents.2 They are not mere instruments; they do not stand to the army as their weapons do to them. It is precisely because they do (sometimes) choose to kill or not, to impose risks or accept them, that we require them to choose in a certain way. That requirement shapes the whole pattern of their rights and duties in combat. And when they break out of that pattern, it is a matter of some significance that they don’t by and large deny the requirement. They claim, instead, that they literally were not able to fulfill it; that they were not at the moment of their “crime,” moral agents at all.
Two Accounts of Killing Prisoners
In his fine memoir of World War I, Guy Chapman tells the following story. After a minor but bloody advance from one line of trenches to the next, he encountered one of his fellow officers, his face “slack and haggard, but not from weariness.” Chapman asked him what was wrong.3
“Oh, I don’t know. Nothing. . . . At least. . . . Look here, we took a lot of prisoners in those trenches yesterday morning. Just as we got into their line, an officer came out of a dugout. He’d got one hand above his head, and a pair of fieldglasses in the other. He held the glasses out to S________, . . . and said, ‘Here you are, sergeant, I surrender.’ S________ said, ‘Thank you, sir,’ and took the glasses with his left hand. At the same moment, he tucked the butt of his rifle under his arm and shot the officer straight through his head. What the hell ought I to do?”
“I don’t see that you can do anything,” I answered slowly. “What can you do? Besides I don’t see that S________’s really to blame. He must have been half mad with excitement by the time he got into that trench. I don’t suppose he ever thought what he was doing. If you start a man killing, you can’t turn him off like an engine. After all, he is a good man. He was probably half off his head.”
“It wasn’t only him. Another did exactly the same thing.”
“Anyhow, it’s too late to do anything now. I suppose you ought to have shot both on the spot. The best thing now is to forget it.”
That sort of thing happens often in war, and it is commonly excused. Chapman’s argument makes some sense: it is, in effect, a plea of temporary insanity. It suggests a kind of killing frenzy that begins in combat and ends in murder, the line between the two being lost to the mind of the individual soldier. Or it suggests a frenzy of fear such that the soldier cannot recognize the moment when he is no longer in danger. He is not, indeed, a machine that can just be turned off, and it would be inhumanly righteous not to look with sympathy on his plight. And yet, if it is true that enemy soldiers are often killed trying to surrender, it is also true that a relatively small number of men do the “extra” killing. The rest seem ready enough to stop as soon as they can, whatever the state of mind they had worked themselves into during the battle itself. This fact is morally decisive, for it suggests a common acknowledgment of the right to quarter, and it proves that the right can in fact be recognized, since it often is, even in the chaos of combat. It is simply not true of soldiers, as one philosopher has recently written, that “war . . . in some important ways makes psychopaths of them all.”4 The argument has to be more particular than that. When we make allowances for what individual soldiers do “in the heat of battle,” it must be because of some knowledge we have that distinguishes these soldiers from the others or their circumstances from the usual ones. Perhaps they have encountered enemy troops who feigned surrender in order to kill their captors: then the war rights of other troops are made problematic in a new way, for one cannot be sure when killing is “extra.” Or perhaps they have been under some special strain or have been fighting too long and are near to nervous exhaustion. But there is no general rule that requires us to make allowances, and sometimes, at least, soldiers should be censured or punished for killings that take place after the battle is over (though summary execution is probably not the best form of punishment). They should certainly never be encouraged to believe that a total lack of restraint can be excused merely by reference to the passions that cause it.
There are officers, however, who encourage exactly that belief, not out of compassion but calculation, not because of the heat of the battle but in order to raise the temperature of men in combat. In his novel The Thin Red Line, one of the best accounts of jungle fighting in World War II, James Jones tells of another incident of “extra” killing.5 He describes a new army unit, its members un-blooded and without confidence in their ability to fight. After a hard march through the jungle, they come upon a Japanese position from the rear. There is a brief and savage fight. At a certain point, Japanese soldiers start trying to surrender, but some of the Americans cannot or will not stop the killing.6 Even after the firefight is definitely over, those Japanese who have succeeded in surrendering are brutally treated—by men, so Jones wants to suggest, who are caught up in a kind of intoxication, their inhibitions suddenly gone. The commanding officer watches all this and does nothing. “He did not want to jeopardize the new toughness of spirit that had come over the men after achieving success here. That spirit was more important than whether or not a few Jap soldiers got kicked around or killed.”
I suppose that soldiers must be “men of spirit,” like Plato’s guardians, but Jones’ colonel has mistaken the nature of their spiritedness. It is almost certainly true that they fight best when they are most disciplined, when they are most in control of themselves and committed to the restraints appropriate to their trade. “Extra” killing is less a sign of toughness than of hysteria, and hysteria is the wrong kind of spiritedness. But even if the colonel’s calculations were correct, he would still be bound to stop the killing if he could, for he cannot train and toughen his men at the expense of Japanese prisoners. He is also bound to act so as to prevent such killings in the future. This is a crucial aspect of what is called “command responsibility,” and I will take it up in detail later on. It is important to stress now that it is a large responsibility; for the general policy of the army, expressed through its officers, the climate they create by their day-to-day actions, has far more to do with the incidence of “extra” killing than does the intensity of the actual fighting. But this doesn’t mean that individual soldiers must be excused; indeed, it suggests once again that heatedness isn’t the issue, but murderousness; and for their own murderousness individuals are always responsible, even when under the conditions of military discipline they are not exclusively so.
It is a feature of criminal responsibility that it can be distributed without being divided. We can, that is, blame more than one person for a particular act without splitting up the blame we assign.7 When soldiers are shot trying to surrender, the men who do the actual shooting are fully responsible for what they do, unless we recognize particular extenuating circumstances; at the same time, the officer who tolerates and encourages the murders is also fully responsible, if it lay within his power to prevent them. Perhaps we blame the officer more, for his coolness, but I have tried to suggest that combat soldiers, too, should be held to high standards in such matters (and they will surely want their enemies held to high standards). The case looks very different, however, when combatants are actually ordered to take no prisoners or to kill the ones they take or to turn their guns on enemy civilians. Then it is not their own murderousness that is at issue but that of their officers; they can act morally only by disobeying their orders. In such a case, we are likely to divide as well as distribute responsibility: we regard soldiers under orders as men whose acts are not entirely their own and whose liability for what they do is somehow diminished.
The incident is infamous and hardly needs retelling. A company of American soldiers entered a Vietnamese village where they expected to encounter enemy combatants, found only civilians, old men, women, and children, and began to kill them, shooting them singly or collecting them in groups, ignoring their obvious helplessness and their pleas for mercy, not stopping until they had murdered between four and five hundred people. Now, it has been argued on behalf of these soldiers that they acted, not in the heat of battle (since there was no battle) but in the context of a brutal and brutalizing war which was in fact, if only unofficially, a war against the Vietnamese people as a whole. In this war, the argument goes on, they had been encouraged to kill without making careful discriminations—encouraged to do so by their own officers and driven to do so by their enemies, who fought and hid among the civilian population.8 These statements are true, or partly true; and yet massacre is radically different from guerrilla war, even from a guerrilla war brutally fought, and there is considerable evidence that the soldiers at My Lai knew the difference. For while some of them joined in the murders readily enough, as if eager to kill without risk, there were a few who refused to fire their guns and others who had to be ordered to fire two or three times before they could bring themselves to do so. Others simply ran away; one man shot himself in the foot so as to escape the scene; a junior officer tried heroically to stop the massacre, standing between the Vietnamese villagers and his fellow Americans. Many of his fellows, we know, were sick and guilt-ridden in the days that followed. This was not a fearful and frenzied extension of combat, but “free” and systematic slaughter, and those men that participated in it can hardly say that they were caught in the grip of war. They can say, however, that they were following orders, caught in the grip of the United States Army.
The orders of Captain Medina, the company commander, had in fact been ambiguous; at least, the men who heard them could not agree afterwards as to whether or not they had been told to “waste” the inhabitants of My Lai. He is quoted as having told his company to leave nothing living behind them and to take no prisoners: “They’re all V.C.’s, now go and get them.” But he is also said to have ordered only the killing of “enemies,” and when asked, “Who is the enemy?” to have offered the following definition (in the words of one of the soldiers): “anybody that was running from us, hiding from us, or who appeared to us to be the enemy. If a man was running, shoot him; sometimes even if a woman with a rifle was running, shoot her.”9 That is a very bad definition, but it isn’t morally insane; barring a loose interpretation of the “appearance” of enmity, it would have excluded most of the people killed at My Lai. Lieutenant Calley, who actually led the unit that entered the village, gave far more specific orders, commanding his men to kill helpless civilians who were neither running nor hiding, let alone carrying rifles, and repeating the command again and again when they hesitated to obey.b The army’s judicial system singled him out for blame and punishment, though he claimed he was only doing what Medina had ordered him to do. The enlisted men who did what Calley ordered them to do were never charged.
It must be a great relief to follow orders. “Becoming a soldier,” writes J. Glenn Gray, “was like escaping from one’s own shadow.” The world of war is frightening; decisions are difficult; and it is comforting to slough off responsibility and simply do what one is told. Gray reports soldiers insisting on this special kind of freedom: “When I raised my right hand and took the [army oath], I freed myself of the consequences for what I do. I’ll do what they tell me and nobody can blame me.”10 Army training encourages this view, even though soldiers are also informed that they must refuse “unlawful” orders. No military force can function effectively without routine obedience, and it is the routine that is stressed. Soldiers are taught to obey even petty and foolish commands. The teaching process has the form of an endless drill, aimed at breaking down their individual thoughtfulness, resistance, hostility, and waywardness. But there is some ultimate humanity that cannot be broken down, the disappearance of which we will not accept. In his play The Measures Taken, Bertolt Brecht describes militant communists as “blank pages on which the Revolution writes its instructions.”11 I suppose there are many drill sergeants who dream of a similar blankness. But the description is a false one and the dream a fantasy. It is not that soldiers don’t sometimes obey as if they were morally blank. What is crucial is that the rest of us hold them responsible for what they do. Despite their oath, we blame them for the crimes that follow from “unlawful” or immoral obedience.
Soldiers can never be transformed into mere instruments of war. The trigger is always part of the gun, not part of the man. If they are not machines that can just be turned off, they are also not machines that can just be turned on. Trained to obey “without hesitation,” they remain nevertheless capable of hesitating. I have already cited examples of refusal, delay, doubt, and anguish at My Lai. These are internal confirmations of our external judgments. No doubt we can make these judgments too quickly, without hesitations and doubts of our own, paying too little attention to the harshness of battle and the discipline of the army. But it is a mistake to treat soldiers as if they were automatons who make no judgments at all. Instead, we must look closely at the particular features of their situation and try to understand what it might mean, in these circumstances, at this moment, to accept or defy a military command.
The defense of superior orders breaks down into two more specific arguments: the claim of ignorance and the claim of duress. These two are standard legal and moral claims, and they seem to function in war very much as they do in domestic society.12 It is not the case, then, as has often been argued, that when we judge soldiers we must balance the necessities of military discipline (that obedience be quick and unquestioning) against the requirements of humanity (that innocent people be protected).13 Rather, we view discipline as one of the conditions of wartime activity, and we take its particular features into account in determining individual responsibility. We do not excuse individuals in order to maintain or strengthen the disciplinary system. The army may cover up the crimes of soldiers or seek to limit liability for them with that end (or that pretended end) in view, but such efforts do not represent the delicate working out of a conception of justice. What justice requires is, first of all, that we commit ourselves to the defense of rights and, second, that we attend carefully to the particular defenses of men who are charged with violating rights.
Ignorance is the common lot of the common soldier, and it makes an easy defense, especially when calculations of usefulness and proportionality are called for. The soldier can plausibly say that he does not know and cannot know whether the campaign in which he is engaged is really required for the sake of victory, or whether it has been designed so as to hold unintended civilian deaths within acceptable limits. From his narrow and confined vantage point, even direct violations of human rights—as in the conduct of a siege, for example, or in the strategy of an anti-guerrilla campaign—may be unseen and unseeable. Nor is he bound to seek out information; the moral life of a combat soldier is not a research assignment. We might say that he stands to his campaigns as to his wars: he is not responsible for their overall justice. When war is fought at a distance, he may not be responsible even for the innocent people he himself kills. Artillery men and pilots are often kept in ignorance of the targets at which their fire is directed. If they ask questions, they are routinely assured that the targets are “legitimate military objectives.” Perhaps they should always be skeptical, but I don’t think we blame them if they accept the assurances of their commanders. We blame instead the far-seeing commanders. As the example of My Lai suggests, however, the ignorance of common soldiers has its limits. The soldiers in the Vietnamese village could hardly have doubted the innocence of the people they were ordered to kill. It is in such a situation that we want them to disobey: when they receive orders which, as the army judge said at the Calley trial, “a man of ordinary sense and understanding would, under the circumstances, know to be unlawful.”14
Now, this implies an understanding not only of the circumstances but also of the law, and it was argued at Nuremberg and has been argued since that the laws of war are so vague, uncertain, and incoherent that they can never require disobedience.15 Indeed, the state of the positive law is not very good, especially where it relates to the exigencies of combat. But the prohibition against massacre is plain enough, and I think it is fair to say that common soldiers have been charged and convicted only for the knowing murder of innocent people: shipwrecked survivors struggling in the water, for example, or prisoners of war, or helpless civilians. Nor is it a question here only of the law, for these are acts that not only “violate unchallenged rules of warfare,” as the British field manual of 1944 states, but that also “outrage the general sentiments of humanity.”16 Ordinary moral sense and understanding rule out killings like those at My Lai. One of the soldiers there remembers thinking to himself that the slaughter was “just like a Nazi-type thing.” That judgment is precisely right, and there is nothing in our conventional morality that renders it doubtful.
But the excuse of duress may hold even in a case like this, if the order to kill is backed up by a threat of execution. I have argued that soldiers in combat cannot plead self-preservation when they violate the rules of war. For the dangers of enemy fire are simply the risks of the activity in which they are engaged, and they have no right to reduce those risks at the expense of other people who are not engaged. But a threat of death directed not at soldiers in general but at a particular soldier—a threat, as the lawyers say, “imminent, real, and inevitable”—alters the case, lifting it out of the context of combat and war risk. Now it becomes like those domestic crimes in which one man forces another, under threat of immediate death, to kill a third. The act is clearly murder, but we are likely to think that the man in the middle is not the murderer. Or, if we do think him a murderer, we are likely to accept the excuse of duress. Surely someone who refuses to kill at such a time, and dies instead, is not just doing his duty; he is acting heroically. Gray provides a paradigmatic example:17
In the Netherlands, the Dutch tell of a German soldier who was a member of an execution squad ordered to shoot innocent hostages. Suddenly he stepped out of rank and refused to participate in the execution. On the spot he was charged with treason by the officer in charge and was placed with the hostages, where he was promptly executed by his comrades.
Here is a man of extraordinary nobility, but what are we to say of his (former) comrades? That they are committing murder when they fire their guns, and that they are not responsible for the murder they commit. The officer in charge is responsible, and those among his superiors who decided on the policy of killing hostages. Responsibility passes over the heads of the members of the firing squad, not because of their oaths, not because of their orders, but because of the direct threat that drives them to act as they do.
War is a world of duress, of threat and counter-threat, so we must be clear about those cases in which duress does, and those in which it does not count as an excuse for conduct we would otherwise condemn. Soldiers are conscripted and forced to fight, but conscription by itself does not force them to kill innocent people. Soldiers are attacked and forced to fight, but neither aggression nor enemy onslaught forces them to kill innocent people. Conscription and attack bring them up against serious risks and hard choices. But constricted and frightening as their situation is, we still say that they choose freely and are responsible for what they do. Only a man with a gun at his head is not responsible.
But superior orders are not always enforced at the point of a gun. Army discipline in the actual context of war is often a great deal more haphazard than the firing squad example suggests. “It is a great boon of frontline positions,” writes Gray, “that . . . disobedience is frequently possible, since supervision is not very exact where danger of death is present.”18 And in rear areas as well as at the front, there are ways of responding to an order short of obeying it: postponement, evasion, deliberate misunderstanding, loose construction, overly literal construction, and so on. One can ignore an immoral command or answer it with questions or protests; and sometimes even an overt refusal only invites reprimand, demotion, or detention; there is no risk of death. Whenever these possibilities are open, moral men will seize upon them. The law seems to require a similar readiness, for it is a legal principle that duress excuses only if the harm the individual soldier inflicts is not disproportionate to the harm with which he is threatened.19 He is not excused for the murder of innocent people by the threat of demotion.
It has to be said, however, that officers are far more capable than enlisted men of weighing the dangers they face. Telford Taylor has described the case of Colonel William Peters, an officer in the Confederate Army during the American Civil War, who refused a direct order to burn the town of Chambersburg, Pennsylvania.20 Peters was relieved of his command and placed under arrest, but he was never brought before a court martial. We may admire his courage, but if he anticipated that his superiors would (“prudently,” as another Confederate officer said) avoid a trial, his decision was relatively easy. The decision of an ordinary soldier, who may well be subject to summary justice and who knows little of the temper of his more distant superiors, is much harder. At My Lai, those men who refused to fire never suffered for their refusal and apparently did not expect to suffer; and that suggests that we must blame the others for their obedience. In more ambiguous cases, the duress of superior orders, though it is not “imminent, real, and inevitable” and cannot count as a defense, is commonly regarded as an extenuating factor. That seems the right attitude to take, but I want to stress once again that when we take it we are not making concessions to the need for discipline, but simply recognizing the plight of the common soldier.
There is another reason for extenuation, unmentioned in the legal literature, but prominent in moral accounts of disobedience. The path that I have marked out as the right one is often a very lonely path. Here, too, the case of the German soldier who broke ranks with his fellow executioners and was promptly executed by them is unusual and extreme. But even when a soldier’s doubts and anxieties are widely shared, they are still the subject of private brooding, not of public discussion. And when he acts, he acts alone, with no assurance that his comrades will support him. Civil protest and disobedience usually arise out of a community of values. But the army is an organization, not a community, and the communion of ordinary soldiers is shaped by the character and purposes of the organization, not by their private commitments. Theirs is the rough solidarity of men who face a common enemy and endure a common discipline. On both sides of a war, unity is reflexive, not intentional or premeditated. To disobey is to breach that elemental accord, to claim a moral separateness (or a moral superiority), to challenge one’s fellows, perhaps even to intensify the dangers they face. “This is what is most difficult,” wrote a French soldier who went to Algeria and then refused to fight, “being cut off from the fraternity, being locked up in a monologue, being incomprehensible.”21
Now, incomprehensible is perhaps too strong a word, for a man appeals at such a time to common moral standards. But in the context of a military organization, that appeal will often go unheard, and so it involves a risk that may well be greater than that of punishment: the risk of a profound and morally disturbing isolation. This is not to say that one can join in a massacre for the sake of togetherness. But it suggests that moral life is rooted in a kind of association that military discipline precludes or temporarily cuts off, and that fact, too, must be taken into account in the judgments we make. It must be taken into account especially in the case of common soldiers, for officers are more free in their associations and more involved in discussions about policy and strategy. They have a say in the shape and character of the organization over which they preside. Hence, again, the critical importance of command responsibility.
Being an officer is not at all like being a common soldier. Rank is something men compete for, aspire to, glory in, and so even when officers were initially conscripted, we need not worry about holding them rigidly to the duties of their office. For rank can be avoided even when service cannot. Junior officers are killed at a high rate in combat, but still there are soldiers who want to be officers. It is a question of the pleasures of command; there is nothing quite like it (so I am told) in civilian life. The other side of pleasure, however, is responsibility. Officers take on immense responsibilities, again unlike anything in civilian life, for they have in their control the means of death and destruction. The higher their rank, the greater the reach of their command, the larger their responsibilities. They plan and organize campaigns; they decide on strategy and tactics; they choose to fight here rather than there; they order men into battle. Always, they must aim at victory and attend to the needs of their own soldiers. But they have at the same time a higher duty: “The soldier, be he friend or foe,” wrote Douglas MacArthur when he confirmed the death sentence of General Yamashita, “is charged with the protection of the weak and unarmed. It is the very essence and reason of his being . . . [a] sacred trust.”22 Precisely because he himself, gun in hand, artillery and bombers at his call, poses a threat to the weak and unarmed, he must take steps to shield them. He must fight with restraint, accepting risks, mindful of the rights of the innocent.
That obviously means that he cannot order massacres; nor can he terrorize civilians with bombardment or bombing, or uproot whole populations in order to create “free-fire zones,” or take reprisals against prisoners, or threaten to kill hostages. But it means more than that. Military commanders have two further and morally crucial responsibilities. First, in planning their campaigns, they must take positive steps to limit even unintended civilian deaths (and they must make sure that the numbers killed are not disproportionate to the military benefits they expect). Here the laws of war are of little help; no officer is going to be criminally charged for killing too many people if he does not actually massacre them. But the moral responsibility is clear, and it cannot be located anywhere else than in the office of commander. The campaign belongs to the commander as it does not belong to the ordinary combatants; he has access to all available information and also to the means of generating more information; he has (or ought to have) an overview of the sum of actions and effects that he is ordering and hoping for. If, then, the conditions set by the doctrine of double effect are not met, we should not hesitate to hold him accountable for the failure. Second, military commanders, in organizing their forces, must take positive steps to enforce the war convention and hold the men under their command to its standards. They must see to their training in this regard, issue clear orders, establish inspection procedures, and assure the punishment of individual soldiers and subordinate officers who kill or injure innocent people. If a great deal of such killing and injuring takes place, they are presumptively responsible, for we assume that it lay within their power to prevent it. Given what actually happens in war, military commanders have a great deal to answer for.
General Bradley and the Bombing of St. Lô
In July 1944, Omar Bradley, in command of American forces in Normandy, was engaged in planning a breakout from the invasion beachheads established the month before. The plan that he worked out, code-named COBRA and approved by Generals Montgomery and Eisenhower, called for the carpet bombing of an area three and a half miles wide, one and a half deep, along the Périers road outside the town of St. Lô. “Air bombing, we calculated, would either destroy or stun the enemy in the carpet” and so permit a quick advance. But it also posed a moral problem, which Bradley discusses in his autobiography. On July 20, he described the coming attack to some American newsmen:23
The correspondents listened quietly to the outline of our plan, craned their necks as I pointed to the carpet and . . . tallied the air strength that had been assigned to us. At the close of the briefing, one of the newsmen asked if we would forewarn the French living within bounds of the carpet. I shook my head as if to escape the necessity for saying no. If we were to tip our hand to the French, we would also show it to the Germans. . . . The success of COBRA hung upon surprise; it was essential we have surprise even if it meant the slaughter of innocents as well.
Bombing of this sort, along the line of battle and in close support of combat troops, is permitted by positive international law. Even indiscriminate fire is permitted within the actual combat zone.24 Civilians are thought to be forewarned by the proximity of the fighting. But as the correspondent’s question suggests, this does not resolve the moral issue. We still want to know what positive measures might have been taken to avoid “the slaughter of innocents” or reduce the damage done. It is important to insist on such measures because, as this example clearly shows, the proportionality rule often has no inhibitory effects at all. Even if a large number of civilians lived in those five square miles near St. Lô, and even if all of them were likely to die, it would seem a small price to pay for a breakout that might well signal the end of the war. To say that, however, is not to say that those innocent lives are forfeit, for there may be ways of saving them short of calling off the attack. Perhaps civilians all along the battlefront could have been warned (without giving up surprise in a particular sector). Perhaps the attack could have been redirected through some less populated area (even at greater risk to the soldiers involved). Perhaps the planes, flying low, could have aimed at specific enemy targets, or artillery have been used instead (since shells could then be aimed more precisely than bombs), or paratroops dropped or patrols sent forward to seize important positions in advance of the main attack. I am in no position to recommend any of these courses of action, although, in the event, any of the last of them might have been preferable, even from a military point of view. For the bombs missed the carpet and killed or wounded several hundred American soldiers. How many French civilians were killed or wounded Bradley does not say.
However many civilians died, it cannot be said that their deaths were intentional. On the other hand, unless Bradley worked his way through the sorts of possibilities I have listed, it also cannot be said that he intended not to kill them. I have already explained why that negative intention ought to be required from soldiers; it is the domestic equivalent of what the lawyers call “due care” in domestic society. With reference to specific and small-scale military actions (like the bombing of cellars described by Frank Richards), the people required to take care are common soldiers and their immediate superiors. In cases such as the COBRA campaign, the relevant individuals stand higher in the hierarchy; it is on General Bradley that we rightly focus our attention, and on his superiors. Once again, I have to say that I cannot specify the precise point at which the requirements of “due care” have been met. How much attention is required? How much risk must be accepted? The line isn’t clear.25 But it is clear enough that most campaigns are planned and carried out well below the line; and one can blame commanders who don’t make minimal efforts, even if one doesn’t know exactly what a maximum effort would entail.
The same problem of specifying standards comes up when one considers the responsibility of commanders for the actions of their subordinates. They are bound, as I have said, to enforce the war convention. But even the best possible system of enforcement doesn’t preclude particular violations. It proves itself the best possible system by seizing upon these in a systematic way and by punishing the individuals who commit them so as to deter the others. It is only if there is a massive breakdown of this disciplinary system that we demand an accounting from the officers who preside over it. This, in effect, is the demand formally made upon General Yamashita by an American military commission in the aftermath of the Philippine campaign in 1945.26 It was said of Yamashita that he was responsible for a large number of specified acts of violence and murder inflicted upon unarmed civilians and prisoners of war. That these acts had in fact been committed by Japanese soldiers no one denied. On the other hand, no evidence was presented to show that Yamashita had ordered the violence and murder nor even that he had known about any of the specified acts. His responsibility lay in his failure “to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities. . . .” Defending himself, Yamashita claimed that he had been entirely unable to exercise control over his troops: the successful American invasion had disrupted his communication and command structure, leaving him in effective charge only of the troops whom he personally led, in retreat, into the mountains of northern Luzon; and these troops had committed no atrocities. The commission refused to accept this defense and sentenced Yamashita to death. His appeal was carried to the U.S. Supreme Court, which declined to review the case, despite memorable dissents by Justices Murphy and Rutledge. Yamashita was executed on February 22, 1946.
There are two ways of describing the standard to which Yamashita was held by the commission and the Court majority. The defense lawyers argued that the standard was one of strict liability, radically inappropriate in cases of criminal justice. That is to say, Yamashita was convicted without reference to any acts he committed or even to any omissions that he might have avoided. He was convicted of having held an office, because of the duties said to inhere in that office, even though the duties were in fact undo-able under the conditions in which he found himself. Justice Murphy went further: the duties were undo-able because of the conditions that the American army had created.27
. . . read against the background of military events in the Philippines subsequent to October 9, 1944, these charges amount to this: “We, the victorious American forces, have done everything possible to destroy and disorganize your lines of communication, your effective control of your personnel, your ability to wage war. In these respects we have succeeded. . . . And now we charge and condemn you for having been inefficient in maintaining control of your troops during the period when we were so effectively besieging and eliminating your forces and blocking your ability to maintain effective command.”
This is probably an accurate description of the facts of the case. Not only was Yamashita unable to do the things that commanders should do, but if we push the argument back, he was in no sense the author of the conditions which made those things impossible. I should add, however, that the other judges did not believe, or did not admit, that they were enforcing the principle of strict liability. According to Chief Justice Stone, the question was “whether the law of war imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command. . . .” It is easy to answer that question affirmatively, but not at all easy to say what measures are “appropriate” under the adverse conditions of combat, disorganization, and defeat.
One wants to set the standards very high, and the argument for strict liability is utilitarian in character: holding officers automatically responsible for massive violations of the rules of war forces them to do everything they can to avoid such violations, without forcing us to specify what they ought to do.28 But there are two problems with this. First of all, we don’t really want commanders to do everything they can, for that requirement, taken literally, would leave them little time to do anything else. This point is never as telling in their case as it is in the case of political leaders and domestic crime: we don’t require our leaders to do everything they can (but only to take “appropriate measures”) to prevent robbery and murder, for they have other things to do. But they, presumably, have not armed and trained the people who commit robbery and murder, and these people are not directly in their charge. The case of military commanders is different; hence we must expect them to devote a great deal of time and attention to the discipline and control of the men with guns they have turned loose in the world. But still, not all their time and attention, not all the resources at their command.
The second argument against strict liability in criminal cases is a more familiar one. Even doing “everything” is not the same as doing it successfully. All we can require is serious efforts of specific sorts; we cannot require success, since the conditions of warfare are such that success isn’t always possible. And the impossibility of success is necessarily an excuse—given serious effort, an entirely satisfactory excuse—for failure. To refuse to accept the excuse is to refuse to regard the defendant as a moral agent: for it is in the nature of moral agents (of human beings) that their best efforts sometimes fail. The refusal disregards the defendant’s humanity, makes him into an example, pour encourager les autres; and that we have no right to do to anyone.
These two arguments seem to me right, and they exonerate General Yamashita, but they also leave us with no clear standards at all. In fact, there is no philosophical or theoretical way of fixing such standards. That is also true with regard to the planning and organization of military campaigns. There is no sure rule against which to measure the conduct of General Bradley. The discussion of double effect in chapters 9 and 10 pointed only in a fairly crude way toward the sorts of considerations that are relevant when we make judgments about such matters. The appropriate standards can emerge only through a long process of casuistic reasoning, that is, by attending to one case after another, morally or legally. The chief failure of the military commission and the Supreme Court in 1945, aside from the fact that they failed to do justice to General Yamashita, is that they made no contribution to this process. They did not specify the measures that Yamashita might have taken; they did not suggest what degree of disorganization might serve as a limit on command responsibility. Only by making such specifications, again and again, can we draw the lines that the war convention requires.
We can say more than this, I think, if we turn back briefly to the My Lai case. The evidence brought forward at the trial of Lieutenant Calley and the materials collected by newsmen carrying on their own investigations of the massacre clearly suggest the responsibility of officers superior to both Calley and Medina. The strategy of the American war in Vietnam, as I have already argued, tended to put civilians at risk in unacceptable ways, and ordinary soldiers could hardly ignore the implications of that strategy. My Lai was itself in a free-fire zone, routinely shelled and bombed. “If you can shoot artillery . . . in there every night,” one soldier asked, “how can the people in there be worth so much?”29 In effect, soldiers were taught that civilian lives were not worth much, and there seems to have been little effort to counteract that teaching except by the most formal and perfunctory instruction in the rules of war. If we are fully to assign blame for the massacre, then, there are a large number of officers whom we would have to condemn. I cannot put together a list here, and I doubt that all of them could have been or ought to have been legally charged and tried—though this might have been a useful occasion to apply, and improve upon, the Yamashita precedent. But that many officers are morally chargeable seems certain, and their blameworthiness is not less than that of the men who did the actual killing. Indeed, there is this difference between them: in the case of the ordinary soldiers, the burden of proof lies with us. As in any murder case, we must prove their knowing and willful participation. But the officers are presumptively guilty; the burden of proof, if they would demonstrate their innocence, lies with them. And until we find some way of imposing that burden, we shall not have done all that we can do in defense of the “weak and unarmed,” the innocent victims of war.
I have left the hardest question for last. What are we to say about those military commanders (or political leaders) who override the rules of war and kill innocent people in a “supreme emergency”? Surely we want to be led at such a time by men and women ready to do what has to be done—what is necessary; for it is only here that necessity, in its true sense, comes into the theory of war. On the other hand, we cannot ignore or forget what it is they do. The deliberate killing of the innocent is murder. Sometimes, in conditions of extremity (which I have tried to define and delimit), commanders must commit murder or they must order others to commit it. And then they are murderers, though in a good cause. In domestic society, and particularly in the context of revolutionary politics, we say of such people that they have dirty hands. I have argued elsewhere that men and women with dirty hands, though it may be the case that they had acted well and done what their office required, must nonetheless bear a burden of responsibility and guilt.30 They have killed unjustly, let us say, for the sake of justice itself, but justice itself requires that unjust killing be condemned. There is obviously no question here of legal punishment, but of some other way of assigning and enforcing blame. What way, however, is radically unclear. The available answers are all likely to make us uneasy. The nature of that uneasiness will be apparent if we turn again to the case of British terror bombing in World War II.
The Dishonoring of Arthur Harris
“He will perhaps go down in history as a giant among the leaders of men. He gave Bomber Command the courage to surmount its ordeals. . . .” So writes the historian Noble Frankland about Arthur Harris, who directed the strategic bombing of Germany from February 1942 until the end of the war.31 Harris was, as we have seen, the determined advocate of terrorism, resisting every attempt to use his planes for other purposes. Now, terror bombing is a criminal activity, and after the immediate threat posed by Hitler’s early victories had passed, it was an entirely indefensible activity. Hence Harris’ case isn’t really an example of the dirty hands problem. He and Churchill, who was ultimately responsible for military policy, faced no moral dilemma: they should simply have stopped the bombing campaign. But we can take it as an example, nonetheless, for it apparently had that form in the minds of British leaders, even of Churchill himself at the end. That is why Harris, though of course criminal charges were never brought against him, was not treated after the war as a giant among the leaders of men.
He had done what his government thought necessary, but what he had done was ugly, and there seems to have been a conscious decision not to celebrate the exploits of Bomber Command or to honor its leader. “From this work,” writes Angus Calder, “Churchill and his colleagues at last recoiled. After the strategic air offensive officially ended in mid-April [1945], Bomber Command was slighted and snubbed; and Harris, unlike other well-known commanders, was not rewarded with a peerage.” In such circumstances, not to honor was to dishonor, and that is exactly how Harris regarded the government’s action (or omission).32 He waited a while for his reward and then, resentfully, left England for his native Rhodesia. The men he led were similarly treated, though the snub was not so personal. In Westminster Abbey, there is a plaque honoring those pilots of Fighter Command who died during the war, listing them all by name. But the bomber pilots, though they suffered far heavier casualties, have no plaque; their names are unrecorded. It is as if the British had taken to heart Rolf Hochhuth’s question:33
Is a pilot who bombs
population centers under orders
still to be called a soldier?
All this makes a point, though it does so indirectly and in so equivocal a fashion that we cannot but notice its moral awkwardness. Harris and his men have a legitimate complaint: they did what they were told to do and what their leaders thought was necessary and right, but they are dishonored for doing it, and it is suddenly suggested (what else can the dishonor mean?) that what was necessary and right was also wrong. Harris felt that he was being made a scapegoat, and it is surely true that if blame is to be distributed for the bombing, Churchill deserves a full share. But Churchill’s success in dissociating himself from the policy of terrorism is not of great importance; there is always a remedy for that in retrospective criticism. What is important is that his dissociation was part of a national dissociation—a deliberate policy that has moral significance and value.
And yet, the policy seems cruel. Stated in general terms, it amounts to this: that a nation fighting a just war, when it is desperate and survival itself is at risk, must use unscrupulous or morally ignorant soldiers; and as soon as their usefulness is past, it must disown them. I would rather say something else: that decent men and women, hard-pressed in war, must sometimes do terrible things, and then they themselves have to look for some way to reaffirm the values they have overthrown. But the first statement is probably the more realistic one. For it is very rare, as Machiavelli wrote in his Discourses, “that a good man should be found willing to employ wicked means,” even when such means are morally required.34 And then we must look for people who are not good, and use them, and dishonor them. Perhaps there is some better way of doing that than the way Churchill chose. It would have been better if he had explained to his countrymen the moral costs of their survival and if he had praised the courage and endurance of the fliers of Bomber Command even while insisting that it was not possible to take pride in what they had done (an impossibility that many of them must have felt). But Churchill did not do that; he never admitted that the bombing constituted a wrong. In the absence of such an admission, the refusal to honor Harris at least went some small distance toward re-establishing a commitment to the rules of war and the rights they protect. And that, I think, is the deepest meaning of all assignments of responsibility.
The world of necessity is generated by a conflict between collective survival and human rights. We find ourselves in that world less often than we think, certainly less often than we say; but whenever we are there, we experience the ultimate tyranny of war—and also, it might be argued, the ultimate incoherence of the theory of war. In a troubling essay entitled “War and Massacre,” Thomas Nagel has described our situation at such a time in terms of a conflict between utilitarian and absolutist modes of thought: we know that there are some outcomes that must be avoided at all costs, and we know that there are some costs that can never rightly be paid. We must face the possibility, Nagel argues, “that these two forms of moral intuition are not capable of being brought together into a single, coherent moral system, and that the world can present us with situations in which there is no honorable or moral course for a man to take, no course free of guilt and responsibility for evil.”35 I have tried to avoid the stark indeterminacy of that description by suggesting that political leaders can hardly help but choose the utilitarian side of the dilemma. That is what they are there for. They must opt for collective survival and override those rights that have suddenly loomed as obstacles to survival. But I don’t want to say, any more than Nagel does, that they are free of guilt when they do that. Were there no guilt involved, the decisions they make would be less agonizing than they are. And they can only prove their honor by accepting responsibility for those decisions and by living out the agony. A moral theory that made their life easier, or that concealed their dilemma from the rest of us, might achieve greater coherence, but it would miss or it would repress the reality of war.
It is sometimes said that the dilemma ought to be concealed, that we should draw the veil (as Churchill tried to do) over the crimes that soldiers and statesmen cannot avoid. Or, we should avert our eyes—for the sake of our innocence, I suppose, and the moral certainties. But that is a dangerous business; having looked away, how will we know when to look back? Soon we will avert our eyes from everything that happens in wars and battles, condemning nothing, like the second monkey in the Japanese statue, who sees no evil. And yet there is plenty to see. Soldiers and statesmen live mostly on this side of the ultimate crises of collective survival; the greater number by far of the crimes they commit can neither be defended nor excused. They are simply crimes. Someone must try to see them clearly and describe them “in express words.” Even the murders called necessary must be similarly described; it doubles the crime to look away, for then we are not able to fix the limits of necessity, or remember the victims, or make our own (awkward) judgments of the people who kill in our name.
Mostly morality is tested only by the ordinary pressures of military conflict. Mostly it is possible, even when it isn’t easy, to live by the requirements of justice. And mostly the judgments we make of what soldiers and statesmen do are singular and clearcut; with whatever hesitations, we say yes or no, we say right or wrong. But in supreme emergencies our judgments are doubled, reflecting the dualist character of the theory of war and the deeper complexity of our moral realism; we say yes and no, right and wrong. That dualism makes us uneasy; the world of war is not a fully comprehensible, let alone a morally satisfactory place. And yet it cannot be escaped, short of a universal order in which the existence of nations and peoples could never be threatened. There is every reason to work for such an order. The difficulty is that we sometimes have no choice but to fight for it.