The Moral Equality of Soldiers
Among soldiers who choose to fight, restraints of various sorts arise easily and, one might say, naturally, the product of mutual respect and recognition. The stories of chivalric knights are for the most part stories, but there can be no doubt that a military code was widely shared in the later Middle Ages and sometimes honored. The code was designed for the convenience of the aristocratic warriors, but it also reflected their sense of themselves as persons of a certain sort, engaged in activities that were freely chosen. Chivalry marked off knights from mere ruffians and bandits and also from peasant soldiers who bore arms as a necessity. I suppose that it survives today: some sense of military honor is still the creed of the professional soldier, the sociological if not the lineal descendent of the feudal knight. But notions of honor and chivalry seem to play only a small part in contemporary combat. In the literature of war, the contrast between “then and now” is commonly made—not very accurately, but with a certain truth, as in this poem by Louis Simpson:1
At Malplaquet and Waterloo
They were polite and proud,
They primed their guns with billets-doux
And, as they fired, bowed.
At Appomattox too, it seems
Some things were understood . . .
There was a great recoil,
The blood was bitter to the bone
The trigger to the soul. . . .
Chivalry, it is often said, was the victim of democratic revolution and of revolutionary war: popular passion overcame aristocratic honor.2 That draws the line before Waterloo and Appomattox, though still not quite correctly. It is the success of coercion that makes war ugly. Democracy is a factor only insofar as it increases the legitimacy of the state and then the effectiveness of its coercive power, not because the people in arms are a bloodthirsty mob fired by political zeal and committed to total war (in contrast to their officers, who would fight with decorum if they could). It is not what the people do when they enter the arena of battle that turns war into a “circus of slaughter,” but, as I have already argued, the mere fact that they are there. Soldiers died by the thousands at Verdun and the Somme simply because they were available, their lives nationalized, as it were, by the modern state. They didn’t choose to throw themselves at barbed wire and machine guns in fits of patriotic enthusiasm. The blood is bitter to their bones, too; they, too, would fight with decorum if they could. Their patriotism is, of course, a partial explanation of their availability. The discipline of the state is not merely imposed on them; it is also a discipline they accept, thinking that they have to for the sake of their families and their country. But the common features of contemporary combat: hatred for the enemy, impatience with all restraint, zeal for victory—these are the products of war itself whenever masses of men have to be mobilized for battle. They are as much the contribution of modern warfare to democratic politics as of democracy to war.
In any case, the death of chivalry is not the end of moral judgment. We still hold soldiers to certain standards, even though they fight unwillingly—in fact, precisely because we assume that they all fight unwillingly. The military code is reconstructed under the conditions of modern warfare so that it comes to rest not on aristocratic freedom but on military servitude. Sometimes freedom and servitude co-exist, and then we can study the difference between them in clinical detail. Whenever the game of war is revived, the elaborate courtesies of the chivalric age are revived with it—as among aviators in World War I, for example, who imagined themselves (and who have survived in the popular imagination) as airborne knights. Compared to the serfs on the ground, these were aristocrats indeed: they fought in accordance with a strict code of conduct that they invented themselves.3 There was thralldom in the trenches, however, and mutual recognition took a very different form. Briefly, on Christmas Day 1914, German and French troops came together, drank and sang together, in the no-man’s land between their lines. But such moments are rare in recent history, and they are not occasions for moral invention. The modern rules of war depend upon an abstract rather than a practical fellowship.
Soldiers cannot endure modern warfare for long without blaming someone for their pain and suffering. While it may be an example of what Marxists call “false consciousness” that they do not blame the ruling class of their own or of the enemy country, the fact is that their condemnation focuses most immediately on the men with whom they are engaged. The level of hatred is high in the trenches. That is why enemy wounded are often left to die and prisoners are killed—like murderers lynched by vigilantes—as if the soldiers on the other side were personally responsible for the war. At the same time, however, we know that they are not responsible. Hatred is interrupted or overridden by a more reflective understanding, which one finds expressed again and again in letters and war memoirs. It is the sense that the enemy soldier, though his war may well be criminal, is nevertheless as blameless as oneself. Armed, he is an enemy; but he isn’t my enemy in any specific sense; the war itself isn’t a relation between persons but between political entities and their human instruments. These human instruments are not comrades-in-arms in the old style, members of the fellowship of warriors; they are “poor sods, just like me,” trapped in a war they didn’t make. I find in them my moral equals. That is not to say simply that I acknowledge their humanity, for it is not the recognition of fellow men that explains the rules of war; criminals are men too. It is precisely the recognition of men who are not criminals.
They can try to kill me, and I can try to kill them. But it is wrong to cut the throats of their wounded or to shoot them down when they are trying to surrender. These judgments are clear enough, I think, and they suggest that war is still, somehow, a rule-governed activity, a world of permissions and prohibitions—a moral world, therefore, in the midst of hell. Though there is no license for war-makers, there is a license for soldiers, and they hold it without regard to which side they are on; it is the first and most important of their war rights. They are entitled to kill, not anyone, but men whom we know to be victims. We could hardly understand such a title if we did not recognize that they are victims too. Hence the moral reality of war can be summed up in this way: when soldiers fight freely, choosing one another as enemies and designing their own battles, their war is not a crime; when they fight without freedom, their war is not their crime. In both cases, military conduct is governed by rules; but in the first the rules rest on mutuality and consent, in the second on a shared servitude. The first case raises no difficulties; the second is more problematic. We can best explore its problems, I think, if we turn from the trenches and the front lines to the general staff at the rear, and from the war against the Kaiser to the war against Hitler—for at that level and in that struggle, the recognition of “men who are not criminals” is hard indeed.
In 1942, General von Arnim was captured in North Africa, and it was proposed by members of Dwight Eisenhower’s staff that the American commander “should observe the custom of by-gone days” and permit von Arnim to visit him before he was sent into captivity. Historically, such visits were not merely matters of courtesy; they were occasions for the reaffirmation of the military code. Thus General von Ravenstein, captured by the British that same year, reports: “I was taken to see . . . Auchinleck himself in his office. He shook hands with me and said: ‘I know you well by name. You and your division have fought with chivalry.’”4 Eisenhower, however, refused to allow the visit. In his memoirs, he explained his reasons:5
The custom had its origin in the fact that the mercenary soldiers of old had no real enmity toward their opponents. Both sides fought for love of a fight, out of a sense of duty or, more probably, for money. . . . The tradition that all professional soldiers are comrades in arms has . . . persisted to this day. For me, World War II was far too personal a thing to entertain such feelings. Daily as it progressed there grew within me the conviction that, as never before . . . the forces that stood for human good and men’s rights were . . . confronted by a completely evil conspiracy with which no compromise could be tolerated.
On this view, it doesn’t matter whether or not von Arnim had fought well; his crime was to have fought at all. And similarly, it may not matter how General Eisenhower fights. Against an evil conspiracy, what is crucial is to win. Chivalry loses its rationale, and there are no limits left except “the limitations of force itself.”
That was Sherman’s view too, but it does not account for the judgments that we make of his conduct, or of Eisenhower’s, or even of von Arnim’s and von Ravenstein’s. Consider now the better-known case of Erwin Rommel: he, too, was one of Hitler’s generals, and it is hard to imagine that he could have escaped the moral infamy of the war he fought. Yet he was, so we are told by one biographer after another, an honorable man. “While many of his colleagues and peers in the German army surrendered their honor by collusion with the iniquities of Nazism, Rommel was never defiled.” He concentrated, like the professional he was, on “the soldier’s task of fighting.” And when he fought, he maintained the rules of war. He fought a bad war well, not only militarily but also morally. “It was Rommel who burned the Commando Order issued by Hitler on 28 October 1942, which laid down that all enemy soldiers encountered behind the German line were to be killed at once. . . .”6 He was one of Hitler’s generals, but he did not shoot prisoners. Is such a man a comrade? Can one treat him with courtesy, can one shake his hand? These are the fine points of moral conduct; I do not know how they might be resolved, though I am sympathetic with Eisenhower’s resolution. But I am sure, nevertheless, that Rommel should be praised for burning the Commando Order, and everyone who writes about these matters seems equally sure, and that implies something very important about the nature of war.
It would be very odd to praise Rommel for not killing prisoners unless we simultaneously refused to blame him for Hitler’s aggressive wars. For otherwise he is simply a criminal, and all the fighting he does is murder or attempted murder, whether he aims at soldiers in battle or at prisoners or at civilians. The chief British prosecutor at Nuremberg put this argument into the language of international law when he said, “The killing of combatants is justifiable . . . only where the war itself is legal. But where the war is illegal . . . there is nothing to justify the killing and these murders are not to be distinguished from those of any other lawless robber bands.”7 And then Rommel’s case would be exactly like that of a man who invades someone else’s home and kills only some of the inhabitants, sparing the children, say, or an aged grandmother: a murderer, no doubt, though not one without a drop of human kindness. But we don’t view Rommel that way: why not? The reason has to do with the distinction of jus ad bellum and jus in bello. We draw a line between the war itself, for which soldiers are not responsible, and the conduct of the war, for which they are responsible, at least within their own sphere of activity. Generals may well straddle the line, but that only suggests that we know pretty well where it should be drawn. We draw it by recognizing the nature of political obedience. Rommel was a servant, not a ruler, of the German state; he did not choose the wars he fought but, like Prince Andrey, served his “Tsar and country.” We still have misgivings in his case, and will continue to have them, for he was more than just unlucky in his “Tsar and country.” But by and large we don’t blame a soldier, even a general, who fights for his own government. He is not a member of a robber band, a willful wrongdoer, but a loyal and obedient subject and citizen, acting sometimes at great personal risk in a way he thinks is right. We allow him to say what an English soldier says in Shakespeare’s Henry V: “We know enough if we know we are the king’s men. Our obedience to the king wipes the crime of it out of us.”8 Not that his obedience can never be criminal; for when he violates the rules of war, superior orders are no defense. The atrocities that he commits are his own; the war is not. It is conceived, both in international law and in ordinary moral judgment, as the king’s business—a matter of state policy, not of individual volition, except when the individual is the king.
It might, however, be thought a matter of individual volition whether particular men join the army and participate in the war. Catholic writers have long argued that they ought not to volunteer, ought not to serve at all, if they know the war to be unjust. But the knowledge required by Catholic doctrine is hard to come by; and in case of doubt, argues the best of the Schoolmen, Francisco de Vitoria, subjects must fight—the guilt falling, as in Henry V, on their leaders. Vitoria’s argument suggests how firmly political life is set, even in the pre-modern state, against the very idea of volition in time of war. “A prince is not able,” he writes, “and ought not always to render reasons for the war to his subjects, and if the subjects cannot serve in the war except they are first satisfied of its justice, the state would fall into grave peril. . . .”9 Today, of course, most princes work hard to satisfy their subjects of the justice of their wars; they “render reasons,” though not always honest ones. It takes courage to doubt these reasons, or to doubt them in public; and so long as they are only doubted, most men will be persuaded (by arguments something like Vitoria’s) to fight. Their routine habits of law-abidingness, their fear, their patriotism, their moral investment in the state, all favor that course. Or, alternatively, they are so terribly young when the disciplinary system of the state catches them up and sends them into war that they can hardly be said to make a moral decision at all:10
From my mother’s sleep I fell into the State.
And then how can we blame them for (what we perceive to be) the wrongful character of their war?a
Soldiers are not, however, entirely without volition. Their will is independent and effective only within a limited sphere, and for most of them that sphere is narrow. But except in extreme cases, it never completely disappears. And at those moments in the course of the fighting when they must choose, like Rommel, to kill prisoners or let them live, they are not mere victims or servants bound to obedience; they are responsible for what they do. We shall have to qualify that responsibility when we come to consider it in detail, for war is still hell, and hell is a tyranny where soldiers are subject to all sorts of duress. But the judgments we actually make of their conduct demonstrate, I think, that within that tyranny we have carved out a constitutional regime: even the pawns of war have rights and obligations.
During the past hundred years, these rights and obligations have been specified in treaties and agreements, written into international law. The very states that enlist the pawns of war have stipulated the moral character of their mutual slaughter. Initially, this stipulation was not based upon any notion of the equality of soldiers but upon the equality of sovereign states, which claimed for themselves the same right to fight (right to make war) that individual soldiers more obviously possess. The argument that I have made on behalf of soldiers was first made on behalf of states—or rather on behalf of their leaders, who, we were told, are never willful criminals, whatever the character of the wars they begin, but statesmen serving the national interest as best they can. When I discuss the theory of aggression and of responsibility for aggression, I will have to explain why that is an inadequate description of what statesmen do.11 For now, it is enough to say that this view of sovereignty and political leadership, which was never in accord with ordinary moral judgment, has also lost its legal standing, replaced in the years since World War I by the formal designation of war-making as a criminal activity. However, the rules of engagement have not been replaced but expanded and elaborated, so that we now have both a ban on war and a code of military conduct. The dualism of our moral perceptions is established in the law.
War is a “legal condition which equally permits two or more groups to carry on a conflict by armed force.”12 It is also, and for our purposes more importantly, a moral condition, involving the same permissiveness, not in fact at the level of sovereign states, but at the level of armies and individual soldiers. Without the equal right to kill, war as a rule-governed activity would disappear and be replaced by crime and punishment, by evil conspiracies and military law enforcement. That disappearance seems to be heralded by the United Nations Charter, where the word “war” does not appear but only “aggression,” “self-defense,” “international enforcement,” and so on. But even the UN’s “police action” in Korea was still a war, since the soldiers who fought in it were moral equals even if the states were not. The rules of war were as relevant there as in any other “conflict by armed force,” and they were equally relevant to the aggressor, the victim, and the police.
The rules of war consist of two clusters of prohibitions attached to the central principle that soldiers have an equal right to kill. The first cluster specifies when and how they can kill, the second whom they can kill. My chief concern is with the second, for there the formulation and reformulation of the rules reach to one of the hardest questions in the theory of war—that is, how those victims of war who can be attacked and killed are to be distinguished from those who cannot. I don’t believe that this question must be answered in this or that specific way if war is to be a moral condition. It is necessary, however, that at any particular moment there be an answer. War is distinguishable from murder and massacre only when restrictions are established on the reach of battle.
The first set of rules does not involve any such fundamental issue. Rules specifying how and when soldiers can be killed are by no means unimportant, and yet the morality of war would not be radically transformed were they to be abolished altogether. Consider, for example, those battles described by anthropologists in which warriors fight with bows and unfeathered arrows. The arrows fly less accurately than they would if they were feathered; they can be dodged; few men are killed.13 It is clearly a good rule, then, that arrows not be feathered, and we may fairly condemn the warrior who first arms himself with the superior and forbidden weapon and hits his enemy. Yet the man he kills was liable to be killed in any case, and a collective (intertribal) decision to fight with feathered arrows would not violate any basic moral principle. The case is the same with all other rules of this kind: that soldiers be preceded into battle by a herald carrying a red flag, that fighting always be broken off at sunset, that ambushes and surprise attacks be prohibited, and so on. Any rule that limits the intensity and duration of combat or the suffering of soldiers is to be welcomed, but none of these restraints seem crucial to the idea of war as a moral condition. They are circumstantial in the literal sense of that word, highly particularized and local to a specific time and place. Even if in practice they endure for many years, they are always susceptible to the transformations brought about by social change, technological innovation, and foreign conquest.b
The second set of rules does not seem similarly susceptible. At least, the general structure of its provisions seems to persist without reference to social systems and technologies—as if the rules involved were (as I think they are) more closely connected to universal notions of right and wrong. Their tendency is to set certain classes of people outside the permissible range of warfare, so that killing any of their members is not a legitimate act of war but a crime. Though their details vary from place to place, these rules point toward the general conception of war as a combat between combatants, a conception that turns up again and again in anthropological and historical accounts. It is most dramatically exemplified when war is actually a combat between military champions, as among many primitive peoples, or in the Greek epics, or in the biblical tale of David and Goliath. “Let no man’s heart fail within him,” says David, “thy servant will go and fight this Philistine.”14 Once such a contest has been agreed upon, soldiers themselves are protected from the hell of war. In the Middle Ages, single combat was advocated for precisely this reason: “Better for one to fall than the whole army.”15 More often, however, protection has been offered only to those people who are not trained and prepared for war, who do not fight or cannot: women and children, priests, old men, the members of neutral tribes, cities, or states, wounded or captured soldiers.c What all these groups have in common is that they are not currently engaged in the business of war. Depending on one’s social or cultural perspective, killing them may appear wanton, unchivalrous, dishonorable, brutal, or murderous. But it is very likely that some general principle is at work in all these judgments, connecting immunity from attack with military disengagement. Any satisfactory account of the moral reality of war must specify that principle and say something about its force. I shall attempt to do both these things later on.
The historical specifications of the principle are, however, conventional in character, and the war rights and obligations of soldiers follow from the conventions and not (directly) from the principle, whatever its force. Once again, war is a social creation. The rules actually observed or violated in this or that time and place are necessarily a complex product, mediated by cultural and religious norms, social structures, formal and informal bargaining between belligerent powers, and so on. Hence, the details of noncombatant immunity are likely to seem as arbitrary as the rules that determine when battles should start and stop or what weapons may be used. They are more important by far, but similarly subject to social revision. Exactly like law in domestic society, they will often represent an incomplete or distorted embodiment of the relevant moral principle. They are subject, then, to philosophical criticism. Indeed, criticism is a crucial part of the historical process through which the rules are made. We might say that war is a philosophical creation. Long before philosophers are satisfied with it, however, soldiers are bound by its canons. And they are equally bound, because of their own equality, and without reference to the content or the incompleteness of the canons.
I propose to call the set of articulated norms, customs, professional codes, legal precepts, religious and philosophical principles, and reciprocal arrangements that shape our judgments of military conduct the war convention. It is important to stress that it is our judgments that are at issue here, not conduct itself. We cannot get at the substance of the convention by studying combat behavior, any more than we can understand the norms of friendship by studying the way friends actually treat one another. The norms are apparent, instead, in the expectations friends have, the complaints they make, the hypocrisies they adopt. So it is with war: relations between combatants have a normative structure that is revealed in what they say (and what the rest of us say) rather than in what they do—though no doubt what they do, as with friends, is affected by what they say. Harsh words are the immediate sanctions of the war convention, sometimes accompanied or followed by military attacks, economic blockades, reprisals, war crimes trials, and so on. But neither the words nor the actions have any single authoritative source; and, finally, it is the words that are decisive—the “judgment of history,” as it is called, which means the judgment of men and women arguing until some rough consensus is reached.
The terms of our judgments are most explicitly set forth in positive international law: the work of politicians and lawyers acting as representatives of sovereign states, and then of jurists codifying their agreements and searching out the rationale that underlies them. But international law arises out of a radically decentralized legislative system, cumbrous, unresponsive, and without a parallel judicial system to establish the specific details of the legal code. For that reason, the legal handbooks are not the only place to find the war convention, and its actual existence is demonstrated not by the existence of the handbooks but by the moral arguments that everywhere accompany the practice of war. The common law of combat is developed through a kind of practical casuistry. Hence the method of this book: we look to the lawyers for general formulas, but to historical cases and actual debates for those particular judgments that both reflect the war convention and constitute its vital force. I don’t mean to suggest that our judgments, even over time, have an unambiguous collective form. Nor, however, are they idiosyncratic and private in character. They are socially patterned, and the patterning is religious, cultural, and political, as well as legal. The task of the moral theorist is to study the pattern as a whole, reaching for its deepest reasons.
Among professional soldiers, the war convention often finds advocates of a special kind. Though chivalry is dead and fighting unfree, professional soldiers remain sensitive (or some of them do) to those limits and restraints that distinguish their life’s work from mere butchery. No doubt, they know with General Sherman that war is butchery, but they are likely to believe that it is also, simultaneously, something else. That is why army and navy officers, defending a long tradition, will often protest commands of their civilian superiors that would require them to violate the rules of war and turn them into mere instruments for killing. The protests are mostly unavailing—for instruments, after all, they are—but within their own sphere of decision, they often find ways to defend the rules. And even when they don’t do that, their doubts at the time and justifications after the fact are an important guide to the substance of the rules. Sometimes, at least, it matters to soldiers just whom they kill.
The war convention as we know it today has been expounded, debated, criticized, and revised over a period of many centuries. Yet it remains one of the more imperfect of human artifacts: recognizably something that men have made, but not something that they have made freely or well. It is necessarily imperfect, I think, quite aside from the frailties of humankind, because it is adapted to the practice of modern war. It sets the terms of a moral condition that comes into existence only when armies of victims meet (just as the chivalric code sets the terms of a moral condition that comes into existence only when there are armies of free men). The convention accepts that victimization or at least assumes it, and starts from there. That is why it is often described as a program for the toleration of war, when what is needed is a program for its abolition. One does not abolish war by fighting it well; nor does fighting it well make it tolerable. War is hell, as I have already said, even when the rules are strictly observed. Just for that reason, we are sometimes made angry by the very idea of rules or cynical about their meaning. They only serve as Prince Andrey says in that impassioned outburst that evidently also expresses Tolstoy’s conviction to make us forget that war is “the vilest thing in life. . . .”16
And what is war, what is needed for success in war, what are the morals of the military world? The object of warfare is murder; the means employed in warfare—spying, treachery, and the encouragement of it, the ruin of a country, the plunder of its inhabitants . . . trickery and lying, which are called military strategy; the morals of the military class—absence of all independence, that is, discipline, idleness, ignorance, cruelty, debauchery, and drunkenness.
And yet, even people who believe all this are capable of being outraged by particular acts of cruelty and barbarism. War is so awful that it makes us cynical about the possibility of restraint, and then it is so much worse that it makes us indignant at the absence of restraint. Our cynicism testifies to the defectiveness of the war convention, and our indignation to its reality and strength.
Anomalous the convention often is, but binding nonetheless. Consider for a moment the common practice of surrendering, the detailed features of which are conventionally (and in our own time, legally) established. A soldier who surrenders enters into an agreement with his captors: he will stop fighting if they will accord him what the legal handbooks call “benevolent quarantine.”17 Since it is usually made under extreme duress, this is an agreement that would have no moral consequences at all in time of peace. In war it does have consequences. The captured soldier acquires rights and obligations specified by the convention, and these are binding without regard to the possible criminality of his captors or to the justice or urgency of the cause for which he has been fighting. Prisoners of war have a right to try to escape—they cannot be punished for the attempt—but if they kill a guard in order to escape, the killing is not an act of war; it is murder. For they committed themselves to stop fighting, gave up their right to kill, when they surrendered.
It is not easy to see all this as the simple assertion of a moral principle. It is the work of men and women (with moral principles in mind) adapting to the realities of war, making arrangements, striking bargains. No doubt, the bargain is generally useful to captives and captors alike, but it is not necessarily useful in every case to either of them or to mankind as a whole. If our purpose in this particular war is to win as soon as possible, the spectacle of a prison camp must seem strange indeed. Here are soldiers making themselves at home, settling in for the duration, dropping out of the war before it is over, and bound not to renew the fighting, even if they can (through sabotage, harassment, or whatever), because they promised at the point of a gun not to do so. Surely these are promises that can sometimes be broken. Yet prisoners are not invited to calculate the relative utilities of keeping or of breaking them. The war convention is written in absolutist terms: one violates its provisions at one’s moral, as at one’s physical peril. But what is the force of these provisions? They derive ultimately from principles that I will take up later on, which explain the meaning of quarter, disengagement, and immunity. They derive immediately and specifically from the consensual process itself. The rules of war, alien as they often are to our sense of what is best, are made obligatory by the general consent of mankind.
Now that, too, is a consent given under a kind of duress. Only because there is no escape from hell, it might be said, have we labored to create a world of rules within it. But let us imagine an escape attempt, a liberation struggle, a “war to end war.” Surely it would be foolish then to fight according to the rules. The all-important task would be to win. But it is always important to win, for victory can always be described as an escape from hell. Even the victory of an aggressor, after all, ends the war. Hence the long history of impatience with the war convention. That history is nicely summed up in a letter written in 1880 by the Prussian chief of staff, General von Moltke, to protest the Declaration of St. Petersburg (an early effort to codify the rules of war): “The greatest kindness in war,” wrote von Moltke, “is to bring it to a speedy conclusion. It should be allowable, with that view, to employ all means save those that are absolutely objectionable.”18 Von Moltke stops short of a total denial of the war convention; he recognizes absolute prohibitions of some unspecified sort. Almost everyone does. But why stop short if that means falling short of the “greatest kindness”? This is the form of the most common argument in the theory of war and of the most common moral dilemma in its practice. The war convention is found to stand in the way of victory and, it is usually said, a lasting peace. Must its provisions, must this particular provision be obeyed? When victory means the defeat of aggression, the question is not only important; it is painfully difficult. We want to have it both ways: moral decency in battle and victory in war; constitutionalism in hell and ourselves outside.