The second major part of Walzer’s just-war theory concerns justified conduct during war (jus in bello). Walzer’s account again derives from the practice of war and the war convention. His major principles are, as in most just-war theory, non-combatant immunity and proportionality of means. Walzer’s use of the war convention is not, however, uncritical, and he makes major contributions to theorizing about jus in bello. In particular, he revises the longstanding Doctrine of Double Effect, by virtue of which just-war theorists deem permissible civilian casualties as foreseen but unintended byproducts of attacks on legitimate military targets. Walzer is less permissive, as he insists that combatants accept risks in order to minimize danger to civilians (Walzer 2015a: 152–9, 2004b: 16–18; for discussion, Luban 2014, Coates 2016: 249–96, Orend 2000: 118–21; for an earlier account, Anscombe 2006: 627). This has especially important implications for waging war in the air, with Walzer insistent that deploying ground troops is almost always morally required. Especially in cases of massacre and ethnic cleansing in places such as Rwanda, Kosovo, Sierra Leone, and now in Syria and Libya, protecting civilians requires action on the ground (Walzer 2004b: 16–17). Walzer uses the principle of non-combatant immunity to advance a critique of terrorism for regarding entire enemy populations, including children, as tarred with the sins of their leaders (Walzer 2015a: 197–207, 1988c, 2006a, 2007: 264–77).
Walzer’s version of jus in bello allows for exemptions to just-war principles in cases of what he calls “supreme emergency,” in which a state can avoid defeat against a terrible enemy only by relaxing the prohibitions and fighting by any means necessary (Walzer 2015a: 251–68, 1988b; see also Walzer 1973b). This reflects the origins of Walzer’s just-war thinking in anti-Nazism, as his only example of supreme emergency is World War II: he claims that, during the time when the UK was the only power opposing Nazi domination of Europe, it was entitled to firebomb German cities if that were necessary to avoid defeat (Walzer 2015a: 255–63). In this regard, Walzer’s account is more permissive than its Christian forebears because it treats principles of just war as binding in almost but not quite all circumstances. This is one of Walzer’s major accommodations to utilitarian moral reasoning; indeed, he calls it a “utilitarianism of extremity” (Walzer 1988b: 40). Walzer suggests that there are occasions on which political leaders must act with regard to consequences, but insists that such situations are moral dilemmas in which all courses of action are, in a sense, wrong (Walzer 1973b). One of the major contributions of his theory of jus in bello is thus to point to the limits of both deontological and utilitarian reasoning.
Walzer’s positions became the orthodoxy in just-war theory for several decades (Lichtenberg 2008: 112, Shue 2004: 140). However, in recent years, his insistence that there is a “dualism” between jus ad bellum and jus in bello such that ordinary combatants are not morally responsible for judging the justice of their cause but only of particular actions or missions (Walzer 2015a: 34–41) has been heavily criticized by “revisionist” theories (Rodin 2002, McMahan 2006a, 2009, Rodin and Shue 2008; for discussion, Lazar 2017). Revisionists insist that just-war theory is of a piece, with the principles of each stage of war reflecting an underlying logic of rights-protection (Orend 2013: 111–16, 185–6). Walzer’s recent work has criticized this account for relying too much on analytic philosophy at the expense of military history, biography, and journalism (Walzer 2015a: 335–46, Walzer 2013a). Consideration of this dispute deepens our understanding of the foundational questions of approach to just-war theory with which I concluded the account of jus ad bellum, and touches on broader questions of method, notably the tension between Walzer’s work and analytic political theory.
At least since the time of the Vietnam War, Walzer’s central claim about jus in bello has been that, as the job of combatants is to kill each other, brutality in war consists in killing either non-combatants or prisoners of war (Walzer 1967b: 284–7; on prisoners of war, Walzer 1970a: 146–66). That is, all combatants are entitled to use lethal force against each other; none may deliberately target civilians. Prisoners of war are entitled to “benevolent quarantine” and are not morally required to attempt to escape so as to continue the war effort (Walzer 1969). Because all combatants have the same rights in war, Walzer calls them “moral equals,” where equality consists in the facts that, “They can try to kill me, and I can try to kill them” (Walzer 2015a: 36). This means that ordinary soldiers are not responsible for jus ad bellum and are entitled to obey any call to arms. However, they are responsible for jus in bello and must disobey illegal orders that command them to target civilians.
Non-combatant immunity follows, Walzer argues, from taking protection of human rights as the foundation of just-war theory. He argues that, “a legitimate act of war is one that does not violate the rights of the people against whom it is directed … no one can be forced to fight or to risk his life … unless through some act of his own he has surrendered or lost his rights” (135). This reiterates an argument that Walzer had made in his second book, Obligations, that we must explicitly and actively consent to an obligation before we can be held responsible for it (Walzer 1970a: ix–xvi), and that we must fight only if we do something to lose our right to refuse to fight (99–145). The default position, then, is that a person is immune from harm. They must have taken some positive action that renders them liable to harm before they may be targeted, even if targeting them is necessary for a legitimate military purpose (Walzer 2015a: 136–7). People who have not taken such actions are not to be targeted, which means that civilians, who are not engaged in acts of war, should not be harmed, regardless of whether they support the war effort. They are, from the perspective of just-war theory, innocents, where innocence refers to lack of involvement in war.
However, Walzer insists, civilians are not entitled to a blanket protection from any danger whatsoever, but rather to “some degree of care” from combatants (Walzer 2015a: 152).1 Due care requires that combatants accept risks to their own lives in order to minimize the danger they pose to civilians, but it cannot guarantee civilian safety. Walzer thus appeals to and reworks the Doctrine of Double Effect (DDE), which is “a way of reconciling the absolute prohibition against attacking non-combatants with the legitimate conduct of military activity” (153; for discussion, Orend 2013: 121–5). DDE has been a key part of just-war theory from its origins in the Catholic theology of Augustine and Aquinas. It remains a significant part of public discourse about war today, with political leaders liable to refer to “collateral damage” when seeking to excuse themselves for causing civilian deaths by implying that those deaths were unfortunate but necessary consequences of war. DDE arose because civilian proximity to military targets can make it impossible to wage war in such a way that no civilians are harmed. In the contemporary world, this issue is of increased salience. For example, if an aggressor state builds a munitions factory in a crowded urban district, the factory cannot be targeted by bombers without causing some civilian deaths. According to DDE, as traditionally understood, it is acceptable to cause civilian casualties, provided that they arise in the conduct of a legitimate military operation, whose direct effect is morally good, and provided that – even if they foresee that their actions will cause civilian deaths – the actors do not intend to kill civilians (Walzer 2015a: 153). This would render a bombing raid on the munitions factory potentially justifiable: so long as neither the bombers nor their commanders intended to kill the civilians in the district, it would be acceptable that they do so, provided that the deaths were unintended byproducts of the legitimate bombing raid.
However, Walzer claims, this argument is too quick and too permissive. Combatants must do more than merely not intend to kill civilians before going on to kill them willy nilly. As he points out, it makes little difference to those killed whether their deaths are intended or not (154). However, forbidding the attack would be too restrictive and would render many wars essentially unwinnable. As the task of just-war theory is to navigate a middle path between realism and pacifism, it must rule out some attacks while permitting others. To do this, Walzer draws an analogy with risky occupations in domestic society, such as gas workers and police officers (156–7; see also Walzer 1983: 165–83). He argues that combatants must make some positive commitment to protect civilians. This is what “due care” means in occupations responsible for public safety (Walzer 2015a: 156). This means that combatants must risk their own lives to protect civilians, regardless of the nationality of the civilians. Enemy civilians are equally immune from harm as one’s own nationals. These risks are limited in scope, because war “necessarily places civilians in danger … We can only ask soldiers to minimize the dangers” (156). For example, when bombing the munitions factory, pilots must fly closer to the ground than they would like. This places them within range of anti-aircraft fire and so increases the risks to the pilots. On the other hand, it makes accurate bombing far more likely, and so makes it more plausible to suggest that combatants intend only to destroy the factory. Any civilian casualties that accrue are then not merely unintended – combatants took positive steps to avoid them.
Walzer’s account of DDE, then, is more restrictive than previous just-war thinkers. This means that his argument makes an important contribution to the attempt to prove that just-war theory does not merely provide excuses for powerful actors to do as they wish and justify themselves after the fact (on this danger, see Walzer 2004b: 3–22). Rather, it forbids many forms of military action and tries to protect human rights to the extent possible in war. Moreover, Walzer’s revision to DDE demonstrates that his appeal to the war convention as the starting point for philosophical analysis is compatible with radical reworking of the norms governing military action. As Orend puts it, Walzer’s use of the convention amounts to the conviction that just-war theorists must understand themselves as operating within a “tradition of thought” rather than “spinning existence out of the privacy of [their] own mind[s]” (Orend 2013: viii).
Walzer’s innovativeness is nowhere showcased more clearly than in his account of a “supreme emergency” (SE) exemption to jus-in-bello principles, which is his “most controversial, and consequential,” amendment to just-war theory (Orend 2013: 54). Waging war in accordance with jus in bello means, in effect, fighting with one hand tied behind one’s back, so Walzer noted recurrent tension between the need to fight wars well and the importance of winning (Walzer 2015a: 109–37). To allow adherence to in-bello principles to jeopardize victory might, if the enemy is sufficiently amoral, risk the survival of a world that takes moral restraints seriously. Conversely, ignoring those principles violates rights and could undermine respect for moral norms, thus exacerbating the threat to morality that prompted the just war. This tension seems to create a no-win situation: in certain circumstances, any course of action threatens the continuation of just-war theory as a body of norms that limits military action. This dilemma is particularly significant for Walzer. On the one hand, he rejects the realist notion that war is a world of necessity in which states cannot afford to accept moral restrictions on their combat. On the other, he grew up in the shadow of the Holocaust and has written eloquently on the danger of “evil” or of ultimate threats to the moral world as such (Walzer 1971b).
Moral dilemmas are not of course peculiar to war. Some years before he wrote Wars, Walzer argued in “Political Action” that what he calls “dirty hands” dilemmas are endemic to political leadership as such (Walzer 1973b; for discussion, De Wijze 2007). A dirty-hands dilemma is one in which all courses of action involve wrongdoing. Walzer insists that it is impossible to govern innocently while fulfilling one’s responsibilities to the citizenry (1973b: 279–81). Three features of politics make dirty-hands dilemmas especially likely: politicians “claim to act for others but also serve [themselves], rule over others, and use violence against them” (288). As a result, there is a tension between the duties of office, which require that leaders act with regard to consequences so as to protect the community, and the duties of humanity, which enjoin respect for all persons. Moral restrictions, such as jus-in-bello principles, reflect the duties of humanity, and can never simply be ignored, because they protect vital individual interests. However, bearing in mind Walzer’s insistence that individuals need to be members of communities, it is also important to act so as to ensure communal survival. This imposes responsibility for outcomes and community safety on political leaders (280). In Walzer’s classic example – the ticking timebomb scenario – the newly elected leader of a colonial country must choose between torturing a terrorist so as to prevent a series of bombs exploding around the colonized capital, or keeping her hands clean but allowing many innocent deaths (283–4). Walzer argues that she must order the torture, even or perhaps especially because she is committed both to decolonization and to international norms against torture in all circumstances. He concludes that a moral politician is one with dirty hands: “If he were a moral man and nothing else, his hands would not be dirty; if he were a politician and nothing else, he would pretend that they were clean” (284).
However, the situation is a dilemma because the torture, although necessary, is also importantly wrong. The norm against torture cannot, Walzer argues, be “set aside,” but only “overridden” (286). This distinction suggests that torture remains wrong in the ticking timebomb scenario, but its wrongness is outweighed by responsibility to protect life. The politician who orders the torture cannot suggest that, given the circumstances, the terrorist has no right not to be tortured. There is a “class of actions,” including torture, that are always wrong, but which may be necessary (284). Yet, because they are still wrong, the actor who dirties her hands must accept a sense of moral guilt (287–8). Walzer insists that, contra utilitarianism, this guilt is not just a non-moral emotion but recognition of the commission of a crime that merits some form of social punishment (291–3). In some situations, however, we must commit crimes, because of the gravity of not doing so. This suggests, Walzer argues, the incompleteness of both utilitarian and deontological moral theory and why each is a corrective to the other. Utilitarianism is right to insist that, at least in extreme circumstances such as the ticking timebomb scenario, consequences must be the foremost decision-making criterion. However, deontologists are right that prohibitions against torture are always morally salient. Decision-making is not the whole of morality: character matters also, and the politicians who dirties her hands also loses her goodness (289–90).
In one of Walzer’s less studied works, Regicide and Revolution (1974), he suggests that the trial and execution of Louis XVI after the French Revolution is an historical example of a dirty-hands dilemma. Louis could not have known that his actions as absolute monarch might one day be considered criminal. On the other hand, Walzer argues, the moderate revolutionary party (Girondins) were right that the post-revolutionary republic needed to put Louis on trial and to punish him so as to establish itself as a community in which no authority other than that derived from the people was seen as legitimate. The more radical Jacobins agreed that Louis should be punished but saw him as an enemy of the people who should be shot without trial. The importance of the trial was in cementing the rule of law. Walzer calls it “revolutionary justice,” and argues that it is “defensible whenever it points the way to everyday justice” (Walzer 1974: 79). Revolutionary justice involves wrongdoing, because it is unfair to try someone for crimes that are only deemed such retroactively, but the importance of establishing a just regime makes it permissible in the circumstances.
The SE is a dirty-hands dilemma writ large. In SE, a political community faces a “serious” and “close” moral disaster that threatens its collective survival and freedom (Walzer 2015a: 250–1). In Walzer’s account, the threat must be posed by a particularly horrific enemy such as the Nazis (that makes it “serious”) and there must be a grave danger of that enemy winning (that makes the threat “close”). Walzer argues that, in SE, states really are in the realm of necessity and must override just-war principles (252). This means fighting in whatever manner is necessary to avert the threat. So, Britain was entitled to firebomb German cities during World War II, because it could not risk Nazi victory (255–63). Although jus-in-bello principles are constraints upon war-making that we must respect in almost all situations, they depend on “some minimal fixed values … When our deepest values are radically at risk, the constraints lose their grip” (Walzer 1988b: 39–40; see also O’Brien 1981: 79–83, Coates 2016: 5–6). Invoking an emergency exemption is necessary because, although war must be limited, there are times when the limits must be broken to prevent the triumph of an evil regime. However, breaking in-bello principles is “a kind of blasphemy against our deepest moral commitments … even in a supreme emergency” (Walzer 2015a: 261), so invoking an SE exemption makes the leader who invokes it a “moral criminal” (Walzer 1988b: 45). In SE, political leaders both do what they must do and commit moral wrongs in doing so. So, Walzer praises the British decision not to honor Arthur Harris, the head of Bomber Command, after World War II (Walzer 2015a: 323–5).
Walzer’s argument about dirty hands and SE is certainly something of a concession to realism. He accepts that there are circumstances in which we really are in the realm of necessity. Even here, however, his position is restrictive. Notably, while he borrows the term “supreme emergency” from Winston Churchill (Churchill 1960: 483–6), he rejects Churchill’s usage of it. Churchill argued that Britain should have violated Norwegian territorial neutrality in 1939, yet Walzer denies that the Nazi threat was at that time sufficiently “close” to warrant an exemption (Walzer 2015a: 248–9), and insists that the UK was no longer in SE after 1942, when it became clear that the Nazis would ultimately be defeated (255–63). Moreover, he denies that the threat posed by Imperial Japan was sufficiently “serious” to warrant an exemption, and so argues that the firebombing of Tokyo and the atomic bombs dropped on Hiroshima and Nagasaki were simply war crimes (261).
Perhaps because Walzer’s only example of a regime terrible enough to trigger an exemption is Nazi Germany, and the Nazis represent the exception that proves in-bello rules, the SE exemption became a “well-established element of the doctrine of just war” (Shue 2004: 140). However, it has also proven extremely controversial, and in this century has faced a barrage of criticism.2 The most controversial part of the account is Walzer’s argument that enemy success means destroying a political community. Walzer insists that bombing German cities might have continued to be legitimate after 1942 were the intention to prevent the Holocaust, but only if doing so were the only possible way to prevent the annihilation of the Jewish people (Walzer 1988b: 46). Moreover, he argues that Britain would have been entitled to invoke the exemption even were the Nazi threat specific to the UK, rather than a threat to moral life per se (Walzer 2015a: 254). Critics claim that this makes Walzer’s argument insufficiently individualistic and grants independent moral status to states or communities (Shue 2003: 753–5, Primoratz 2011, Roberts 2012). Walzer himself calls SE a “communitarian doctrine” (1988b: 45) and argues that it is because communities protect common lives that threats to communities constitute SE (42–5).
Critics have frequently argued that Walzer cannot define success in terms of communities and maintain his insistence that his just-war theory’s foundation is human rights. They thus insist that, if SE is justified, it is so only by virtue of the horror of the threat, not because of the threat to the community: only a general threat should qualify as “serious.” There are two ways of making this point: an SE might mean either a threat to “civilized life” per se (Rawls 1999: 99, Roberts 2012: 159, Shue 2004) or the threat of catastrophic levels of loss of life (Shue 2004: 147, Primoratz 2011: 382). Neither approach would attach fundamental moral importance to communities. Shue argues that we should resist the temptation to include “national emergencies” within the scope of the exemption, because “the defeat of a single nation, or even the defeat of an alliance, would not constitute the destruction of any moral ideal, such as the reign of law or civilized society” (Shue 2004: 148). Just as threats of the magnitude of the Nazis are rare, so are paragons of virtue necessary to the survival of moral ideals. Including threats to single nations within SE would, on this view, blur the contrast between SE and a “terrible but ‘normal war’” (Shue 2004: 149). For the SE exemption to be legitimate, critics suggest, it must match up to a liberal conception of just wars that focuses on respect for human rights as crucial to the legitimate use of force (Roberts 2012: 166–8). As Shue puts it, “Liberalism is committed to the individual person being the ultimate moral unit … For liberalism, communities matter not in themselves but to their individual members” (Shue 2004: 151–2). On this view, Britain could invoke an SE exemption only because the Nazi threat was so great to everyone, not because Britain might face conquest at Nazi hands. Walzer’s critics insist that political communities must on occasion accept defeat in war, even if that means loss of national independence (Roberts 2012: 159).
I do not believe that Walzer’s view treats states or communities as though they have intrinsic moral value. Walzer’s position rests on the view that membership rights are among the most important of individual rights, because individual identity and interests are constituted by and inseparable from particular communal formations (Reiner 2017b: 431–6, Walzer 1980a). This has important implications: if we find our identity in communal life, then one of the most important individual rights is to membership in our community. If so, destruction of the community may constitute a moral disaster and the loss of a way of life may mean the destruction of a moral ideal. On this reading, Walzer’s argument involves individualistic reasoning grounded in the centrality of rights to communal membership. Walzer does not advocate an SE exemption in cases of monstrous threats to the survival of the community because he takes the collectivist position that the common good is more important than individual rights, but because he sees community membership as a highest-order interest and right because we derive our character, beliefs, and identity from the community (Walzer 1988b: 42). It is a “feature of our lived reality” (49). Walzer accepts that fetishizing community is a moral mistake, but insists that “a non-fetishized community” will live by in-bello principles until “the last minute and under absolute necessity” (49–50).
It is not necessarily the case that someone who values membership rights must agree with Walzer on SE (see for example Taylor 2011: 105–23). But it is worth pointing out that the practice of war in important ways rests on assumptions about the importance of community that are in line with Walzer’s position. Demanding that individual combatants risk their lives in war moves perilously close to using them as means to social ends if it is not true that the community helps define our identity. Moreover, the willingness of many combatants to accept that risk seems incomprehensible if their lives are all they have or are their highest-order interests. However, if as Walzer suggests, the ongoing way of life of the community helps to reconcile us to our own death by allowing us to place faith in our descendants continuing to uphold our valued practices (Walzer 1988b: 42–3), the individual sacrifices that every war necessitates are more easily understood. That implies that Walzer’s view that communal destruction may be a moral disaster is a plausible one that touches on some of the deepest terrors of war and our ability to maintain hope for the future in its midst. On Walzer’s account, the critics are too singular: they view moral life as global in extent, when it is in fact created and constituted by particular communities. This is another reason why his just-war theory seeks to uphold the pluralism of the international system.
Walzer’s invocation of an SE exemption suggests that there are circumstances in which any course of action, no matter how brutal, is legitimate, provided that it is necessary. It even appears to sanction state terrorism: after all, the reason he argues Britain was justified in firebombing German cities was that doing so might weaken German resolve by demoralizing the civilian population in a way that indiscriminate attacks on military targets would not (Walzer 2015a: 259–60). Terrorism is an attack “directed indiscriminately against” an “entire class” of people with the intent of ensuring the “intrusion of fear into everyday life” (Walzer 1988c: 51). Firebombing German cities so as to frighten civilians meets that description almost perfectly. Given that, one of the noteworthy features of Walzer’s theory of jus in bello over the decades is his frequently reiterated critique of terrorism and its excusers and apologists (Walzer 1975b, 2015a: 197–206, 1986a, 1988c, 2006a).
Walzer argues that terrorism is always a “political strategy selected from among a range of options” (Walzer 2002b: 5; 1988c). While terrorists, like realists, suggest that their actions are not in any meaningful sense chosen, because they have no options other than targeting civilians, Walzer insists that there are always other strategies to which resistance movements can resort. The view that attacking the innocent is the only possible course of action is, Walzer holds, an anti-political position that presupposes that, “All politics is (really) terrorism” (Walzer 1988c: 56). That is to say, where some terrorist movements or their apologists suggest that indiscriminate attacks on whole groups of people are a weapon of the oppressed, Walzer argues that such people believe this because they operate with a Manichean worldview: political opponents become the “Enemy” and are demonized to an extent that makes murder seem unproblematic (Walzer 2002b). Terrorism should refer to an attempt to “destroy the morale of a nation or a class … [by] the random murder of innocent people, with the randomness serving to intensify fear throughout the community in question (Walzer 2015a: 197). This makes it “the continuation of war by political means,” and the first means of ensuring a tyrannical solution (198). This also explains why, on Walzer’s view, firebombing German cities during SE is at least slightly different than terrorism: it is no part of his argument, nor even that of the British government, that German civilians are the “Enemy,” not that they are guilty of Nazism’s crimes against humanity, or even that murder is unproblematic.
While Walzer’s definition could apply to both state and non-state actors (197), the thrust of much of his work on terrorism is to insist that left criticism of US foreign policy as involving “state terrorism” is an exaggeration that obscures the moral wrong in question (Walzer 1986a; see also Walzer 2002a, 2003 for the claim that leftist opponents of the US usually simplify and exaggerate their critiques). When US combatants accept risks to try to minimize danger to civilians, they do not in Walzer’s view act as terrorists, even if they end up causing civilian death. Only the deliberate killing of innocents constitutes terrorism (Walzer 1986a). Thus, the crucial point of Walzer’s critique of terrorism is that he usually has in mind the deliberate targeting of civilians by “far left and ultranationalist movements” since World War II (Walzer 2015a: 198). In this period, Walzer claims, a “political code” used by resistance movements, and analogous to the laws of war because it also forbids deliberately targeting civilians, has broken down (198–201).
To illustrate the political code, Walzer offers various examples. The most graphic is Albert Camus’s account of Russian revolutionaries desisting from blowing up a Tsarist official because he was accompanied by his two children, and the most systematic is the Irish Republican Army’s campaign to unify Ireland, involving the separation of Northern Ireland from the UK (198–9). While Walzer refers to IRA campaigns in the 1930s, it remained the case throughout the 1980s – after the publication of Wars – that when the IRA placed bombs in strategic locations, they would then warn officials in advance, so as to minimize danger to civilians and, so far as possible, target state apparatus. Actions such as this illustrate the political code in that, like the war convention, it draws a distinction between “officials and civilians” based on “the moral difference between … aiming at particular people because of things they have done or are doing, and aiming at whole groups of people, indiscriminately, because of who they are” (200). Walzer does not fully endorse the political code, not least because the justice of the militants’ causes is disputed, but he grants it a “kind of moral respect not due to terrorists,” who refuse to accept limits (201).
Walzer’s argument purports to show that, even if terrorists are seeking to advance a cause that would be justly pursued by other means, targeting civilians deliberately renders them criminal. They are like soldiers whose cause satisfies jus ad bellum but whose war is unjust because they deliberately violate jus in bello. Here Walzer has two important political targets. First, his critique amounts to a defense of sorts of Israel: the 1980s, during which time Walzer expended much effort denouncing terrorism, was the time of the first Palestinian Intifada. Walzer’s critique involves condemnation of some methods of resistance to Israel’s occupation of Palestinian territories. Although Walzer did not attempt to justify the occupation (see Walzer 1970b), and as someone committed to national self-determination, accepted the Palestinian right to statehood, he frequently expresses discomfort with the nature of the Palestinian resistance movement. Notably, he argues that he would not want to be represented by “a figure in a stocking mask” (Hart 2000: 193). Second, Walzer intends to reject the anti-colonial theories of radical leftists such as Frantz Fanon, who suggested that violent action in opposition to colonization is always legitimate and necessary (Fanon 1963). Walzer is particularly critical of Jean-Paul Sartre’s appropriation of Fanon’s argument that the killing of Europeans is psychologically necessary to the freedom of the colonized. Sartre summarizes Fanon’s position thus: “in the first days of the revolt you must kill: to shoot down a European is to kill two birds with one stone, to destroy an oppressor and the man he oppresses at the same time: there remain a dead man, and a free man” (Sartre 1963: 22). Walzer argues that Sartre’s refusal to distinguish among Europeans and exempt the innocent, especially children, from blame legitimizes indiscriminate terrorism (Walzer 2015a: 204–5; Walzer 2002a).3 Walzer quips that if Sartre believed what he wrote, he ought to have advanced the cause of decolonization by volunteering to allow an Algerian to murder him so as to achieve psychological freedom (Walzer 2018: 174).
Walzer’s critique of terrorism illustrates another aspect of the political nature of his work: it engages in particular political controversies. This has been a source of criticism with regard to Israel. While Walzer accepts that commitment to Israel motivates some of his writing, he has frequently criticized Israeli occupation policy (see for example Walzer 2006a). From the theoretical viewpoint, a core aspect of his contribution is the claim that just-war theory must be politically engaged: there is no Archimedean neutral point from which to engage in philosophical work. With regard to terrorism, though, there is a problem, for if anti-colonial forces really were in an SE, Walzer’s own theory ought to suggest that invoking an exemption to in-bello principles is simultaneously necessary and worthy of punishment. Terrorists might show their good faith by giving themselves up for arrest, making their actions a sort of uncivil disobedience. Yet few, if any, terrorist groups do indeed find themselves facing a “serious” and “close” threat to their existence. Indeed, it is unclear whether anyone other than the Nazis prompts such a threat. Moreover, Walzer’s insistence upon political analysis of particular circumstances involves rejection of leftist world-historical theories that explain all foreign policies as colonial projects (Walzer 2003). In rejecting such theories, Walzer relies on the counter-claim that, while force and domination are always present in social life, they are always mixed with consensus and consent (Walzer 1993a). This means that there is (almost) always room for resistance that respects the civilian/military distinction.
Walzer’s theory of jus in bello is novel in various aspects. In one, however, it reflects both the traditional position4 and, much more, common sense, but has nonetheless recently become controversial. That is the notion of the “moral equality” of soldiers, which suggests that it is not wrong to fight for one’s country even if its cause is unjust. For example, Nazi soldiers who respected non-combatant immunity were not blameworthy, because they were “trapped in a war they didn’t make” (Walzer 2015a: 36). Crucial to this argument is its corollary: all soldiers engaged in fighting may legitimately be targeted. Walzer recognizes that many combatants will have difficulty in targeting soldiers who are off-duty, asleep, naked, or otherwise not engaged in fighting, but points out that it is not against the laws of war to kill troops at such times (138–44). However, he insists that all soldiers engaged in fighting are legitimate military targets, no matter how just their cause, and moreover that factory workers supplying material that combatants need in order to fight may also be killed (144–7).
Walzer’s justification of non-combatant immunity leads him to some difficulty with regard to the view that all combatants are legitimate targets. Remember that his position is that civilians are immune from harm because nobody may be forced to fight (Walzer 1970a; 2015a: 135). However, many soldiers are conscripted, so Walzer has to explain why the “first principle of the war convention is that … soldiers are subject to attack at any time” (Walzer 2015a: 138). Acknowledging that this not only means targeting people who have not chosen to fight but is also a piece of “class legislation,” (138), Walzer argues nonetheless that engaging in harm forfeits soldiers’ right to life. By fighting, even under duress, a combatant “alienates himself from me … and from our common humanity” (142). Posing a threat renders a combatant liable to harm, no matter how reluctantly the combatant poses it. In this respect, the domestic analogy is inapposite: war “as an activity … has no equivalent in settled civil society. It is not like an armed robbery” in which someone killing a guard cannot claim to act in self-defense (127–8). Rather, combatants whose cause is unjust are entitled to defend themselves against warriors prosecuting a just cause. Walzer’s reasoning is that combatants are “led to fight by their loyalty to their own state and by their lawful obedience. They are most likely to believe that their wars are just” (127). Moreover, the considerable propaganda devoted to convincing them that the war is just makes combat unlike domestic crime and ensures that no combatant does wrong by participating in an unjust war, provided that they obey in-bello principles.
There was a time when this argument was widely accepted, but “revisionists” have recently subjected the argument to sustained criticism, suggesting that combatants must be held responsible for judging whether their military is prosecuting a just cause. In popular fiction, Quentin Tarantino’s Inglourious Basterds (2009) brutally presents an alternative position, suggesting that any soldier who fought for the Nazis was a criminal who merited punishment in the form of branding. In the academy, revisionists suggest that combatants whose cause is just ought to be considered immune from harm because they have done nothing to render themselves liable. Most importantly, Jeff McMahan argues that Walzer fails “consistently to adhere to the rejection of group membership as a basis of liability to attack” (McMahan 2006b: 13). This can be understood as a sort of internal critique of Walzer’s position; it is particularly biting because Walzer insists that his theory is based on universal individual rights, but revisionists claim that in his theory people’s moral status depends on their group membership. A major dilemma for Walzer’s theory is how he can reconcile individualism with denial of individual responsibility for assessing the justice of resort to war.
On McMahan’s view, a “person becomes a legitimate target in war by being to some degree morally responsible for an unjust threat” (McMahan 2006a: 34; 2009). It follows that not all combatants are liable to harm in war: because combatants whose cause is just are not morally responsible for an unjust threat but engaged in defensive action that is morally akin to police work, they are not liable to attack. The argument that combatants become liable to attack simply by fighting is at odds with principles of personal self-defense. If “a murderer is in the process of killing a number of innocent people and the only way to stop him is to kill him, the police officer who takes aim … does not thereby render herself morally liable to defensive action” (McMahan 2009: 14, Rodin 2002: 163). So, whereas Walzer argues that posing a threat renders someone liable to harm and so makes all combatants liable, McMahan insists that moral responsibility for the threat is crucial and that the threat must be illegitimate (McMahan 2009: 32–7, Rodin 2002: 164). On the revisionist account, combatants whose cause is unjust are guilty of illegitimate acts of harm, even if misled by their government into thinking the war just, and so are liable to harm. In fact, killing in prosecution of an unjust cause involves killing the innocent and is tantamount to murder.
So, revisionists reject Walzer’s argument that soldiers are morally equal, and argue that combatants must assess the justice of their army’s cause. By contrast, they view killing in prosecution of a just cause as legitimate, provided that it is necessary and proportionate. McMahan goes further: he argues that, once we think in terms of moral responsibility, we must rethink non-combatant immunity. After all, some civilians are morally responsible for illegitimate acts of harm. For example, McMahan claims, it is at least plausible to hold the executives of the United Fruit Company to be liable to harm for their role in persuading the CIA to overthrow the Guatemalan government in 1954 (McMahan 2006a: 30–7, 2009: 214–22). Other revisionists reject this view. For example, David Rodin argues that the only group of people liable to attack in war are combatants whose cause is unjust (Rodin 2008: 56). In practice, McMahan accepts a legal norm of non-combatant immunity (McMahan 2008), while insisting that the principle be thought of in terms of discrimination between legitimate and illegitimate targets.
The implications of the revisionist account are extremely radical. They take the cosmopolitan rejection of state sovereignty – discussed in Chapter 1 – a step further, treating just wars as global law enforcement. McMahan has been particularly assiduous about this, suggesting extension of the remit of the International Criminal Court to make rulings on ad-bellum decisions that would alleviate the epistemic quandary of combatants who are unsure about their cause’s justice (McMahan 2014; for critique, Benbaji 2014). This court would “codify our understanding of jus ad bellum in a body of deontic principles stating prohibitions, permissions, and perhaps requirements concerning the resort to war” (McMahan 2014: 242). Most importantly, it would mean that combatants could not claim ignorance of the injustice of their side’s war and so could less easily fight in unjust wars. This would make it easier to treat just wars as global police work, rendering the opposition to just warriors less effectual. The revisionist goal – like that of theorists of justice after war discussed in Chapter 6 – is a world in which human rights are more reliably secured and individuals who do not bear moral responsibility for illegitimate threats are immune from harm.
The critique of the moral equality of soldiers takes us to the heart of just-war theory, by pointing to alternative foundations. McMahan insists that the war convention is the wrong starting point, because it is at odds with “our ordinary beliefs about moral liability to defensive force” (McMahan 2006c: 51). It is not, as Walzer holds, an adaptation of ordinary morality to war but an “adaptation to the circumstances of war of a Hobbesian vision of the right of self-defense combined with various elements of chivalric morality” (51). McMahan suggests as an alternative foundation the criminal-law notion of liability, according to which people are immune from harm unless they have done something that renders them liable to it or unless the person harming them has a lesser-evil justification (McMahan 2006a: 34). That is why moral responsibility for, not the posing of, a threat is, for McMahan, crucial. In using the principles developed over centuries of military practice as his starting point, Walzer uses principles incompatible with liberal-democratic commitment to human rights, and renders people liable to harm who have done nothing to render themselves liable. Combatants whose cause is just bear no moral responsibility for an unjust threat and so have not rendered themselves liable. McMahan concludes that we should use the “foundational convictions about justice” clarified by contemporary philosophical analysis as just-war theory’s foundation because this will enable us consistently to judge people as individuals whose liability, or lack thereof, is a product of their actions, not their group membership (McMahan 2006b: 13–15). The war convention cannot serve as the basis for critical analysis because conventional moral beliefs are the product of outdated norms and power relations. In effect, revisionists repeat the charge that Walzer’s theory fails sufficiently to uphold the dignity of the individual.
Part of a Walzerian response must be that individuals should not be understood as isolated atoms but as members of communities, whose interest in the continuation of the community over time entitles them to some trust in the community. In response to McMahan, however, Walzer focuses primarily on the question of approach. He holds that McMahan and other revisionists show insufficient interest in war. In 2015, Walzer took the opportunity of the publication of a fifth edition of Wars to expand his account of the methodological dispute in a postscript entitled “A Defense of Just-War Theory” (Walzer 2015a: 335–46). On Walzer’s account, revisionists do not really advance a form of just-war theory at all: they “are preoccupied with the academic literature about moral philosophy … reading the journals, not the journalists … [arguing] with each other” (336). As he puts it, McMahan provides a “careful and precise account of what individual responsibility in war would be like if war were a peacetime activity” (Walzer 2006d: 43). Yet, as Walzer had argued in Wars, the conduct of war is not akin to activities in civil society: that was why he rejected the analogy between armed robbery and war. Walzer argues that, because revisionists rely almost entirely on the techniques of analytic philosophy, they fail to recognize the distinctiveness of war as a human activity (Walzer 2015a: 335). As a result, although Wars was largely successful in its goal of recovering the just war for political theory, Walzer has become increasingly dissatisfied with the nature of contemporary just-war theory (335–6).5
Walzer notes that his reading for Wars consisted primarily of military history, combatant memoirs, and wartime journalism, and that he also devoted much attention to fictional works. These genres were crucial because, “I had never been a soldier myself and I needed to learn as much as I could about the experience of war … I wanted the moral arguments of my book to ring true to their authors” (336). For Walzer, the source material for just-war theory must primarily be about war, because moral argument must start with an account of the understandings of practitioners in the field. By contrast, revisionist focus on academic journals suggests an attempt to deduce ethical principles from a foundation in pure reason, implicitly assuming that there is one moral logic across the range of human activities. For Walzer, this must be a mistake, because meanings and values are always the product of social discourse.
The moral reality of war, Walzer argues, is distinctive by virtue of three central features: war’s intense coerciveness, its collectiveness, and its all-encompassing uncertainty (339–46). For example, the prisoner-of-war convention arose from the ubiquity of threats to life at all times: combatants agree to surrender because they are threatened with death. Yet if war were like civil society, we would have to conclude that such an agreement was invalid and unbinding because made under duress. It would thus be illegitimate to punish prisoners of war who attempt to escape. Walzer concludes that we can understand the convention only as a means of escape from war’s coerciveness (340). Perhaps equally important, we cannot understand why soldiers are willing to risk their lives for the state unless we adopt a theory of membership in which the state does not exist merely to defend individual lives but to promote a community’s common life (see also Walzer 1988b: 41–5). Yet we can grasp visions of a common life only through situated narrative accounts, using the techniques of history, anthropology, or sociology, not by abstract philosophical argument. When analytic philosophers use “strange hypothetical cases” that “no real-world actor will ever confront” (Walzer 2006e: 21, 2006d: 43), they fail to recognize that war is already a sort of moral world that contains the resources necessary for its own correction.
In other words, revisionists fail to recognize that the war convention has value to those people to whom it applies; namely, those involved in war. Commenting on Walzer’s notion that soldiers are moral equals, Orend suggests that Walzer oscillates between a “humane sympathy” for their coercion and a “glib callousness” portrayed in his concurrence with Napoleon that “soldiers are made to be killed” (Orend 2013: 113, Walzer 2015a: 136). Yet the context for Walzer’s remark is discussion of the fact that soldiers’ vulnerability explains the kernel of truth in the realist doctrine that “war is hell.” We should understand the moral equality of soldiers as resting on acceptance that soldiers are going to be placed in danger regardless of the justice of their cause, and as seeking to assuage their existential anguish by soothing their consciences about their attempts to save themselves (on the psychological suffering war causes, see Sherman 2014). What this points to is that the political nature of Walzer’s work renders it more modest than revisionist approaches. Rather than seeking to remake the world so that future incidence of war is less likely and individual rights are better protected, Walzer seeks to leave more room for collective decision-making. This is because of his commitment to the notion that the norms to which actual people involved in war attach value cannot be completely uprooted but only ameliorated, and that slowly. Walzer insists that just-war theory engage with military history and practice because what is at stake in war is not just life but ways of life and the continuation of communities.6