Wednesday, March 29, 2006

The Rules of War

by Steven Grueshaber

This week we are dealing with questions regarding jus in bello, or ‘justice in war.’ Jus in bello questions are concerned with actions that occur after a war is already started. What actions are you justified in performing during a time of war? This is a very broad question and the answer to it is beyond the scope of this paper. The goal of this paper is to address more specific questions that you must first answer before attempting the much broader question above. More specifically, I am concerned with the distinction between combatants and noncombatants as well as the role that distinction plays when determining the rules of war.

Ever since the 9/11 destruction of the World Trade Centers our country has placed a lot of stress on the concept of patriotism, the love and devotion to one’s country. This, I feel, is a misguided concept. One should not perform any particular action for the sole reason of it being your country’s desire. One should actually be concerned with what actions you truly ought to perform and make decisions accordingly. While this may seem to address the issue of jus ad bellum, it is important for the distinction of soldiers in my combatant vs. noncombatant issue. Walzer makes the claim that soldiers are not responsible for the decision of whether or not they fight but that they are only responsible for how they fight. Walzer believes that a soldier’s nation is responsible for determining whether or not a soldier goes to war. He says that “We still hold soldiers to certain standards, even though they fight unwillingly—in fact, precisely because we assume that they all fight unwillingly.[1] Later, he says that “It is the sense that the enemy soldier, though his war may well be criminal, is nevertheless as blameless as oneself.”[2] I disagree with Walzer on this point. A soldier is not innocent of a crime simply because he was told or even threatened to do so. Patriotism does not dissolve someone’s responsibility for a crime. Since when has “he told me to do it” ever been a viable excuse for a crime? While the answer to this is an obvious “never,” being threatened to do something has more complicated solutions. One common argument for a soldier not being responsible for going to war is that he suffers bad consequences for not doing so. He could suffer legal and social persecution for abandoning the army. In some armies a deserter may even be punished by death. However, I cannot be morally justified in killing others unless they are unjustly trying to kill someone else. Self defense cannot apply here because you are not actually defending yourself from the person threatening you but you are in effect appeasing him. This means that soldiers are only justified in fighting a war if that war itself is just.

Walzer also makes the claim that killing another combatant in a war is not murder. While this mostly draws from the fact that he believes that soldiers are not responsible for being involved in the war, he also gives an example for soldiers that do agree to go to war of their own volitions. “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.” Due to the fact that every soldier has the freedom to choose not to fight – regardless of whether or not there are consequences – we are left with the first claim. Suppose that my country is under attack by another country. If I decide to fight to defend myself, my loved ones, or the other people of my country, then it would seem that I am satisfying Walzer’s first claim. However, I am not choosing the people of the other country as my enemies. The soldiers that are attacking my country are the ones choosing to be my enemies. Because I have not entered into some sort of war contract with them, it would be murder; they would be unjust in killing me. I, on the other hand, would be justified in killing them because I would be doing so in self defense.

My point to all of this is to show that the legalist paradigm does apply to jus in bello issues. Walzer claimed that it wouldn’t work because there are separate rules in a time of war. This is largely because he felt that soldiers didn’t have the freedom to choose whether or not to go to war, but also because there are certain customs to war that both sides should follow. I have already shown how soldiers are responsible for deciding whether or not they go to war. The customs, however, exist only for pragmatic reasons but are not always the most pragmatic thing to do, so they are by no means universal. Basically, these customs are designed to limit the severity of the war. Some examples of these customs are allowing the surrender of enemy soldiers and refraining from torturing enemy prisoners. This is good for a couple of reasons, both of which are mentioned by Walzer: “It has to do not only with reducing the total amount of suffering, but also with holding open the possibility of peace and the resumption of pre-war activities.” However, sometimes ignoring these customs is necessary. For these reasons, I think it is safe to apply the legalist paradigm in jus in bello situations.

The first jus in bello consideration is that of proportionality. Basically, you want to win a war while causing the fewest number of casualties as possible. I cannot cover the entire topic here but I will show how proportionality should be viewed in relation to combatants and noncombatants. There are a couple of important points to consider. You have three separate classifications for individuals in a war: Noncombatant, combatant aggressor, and combatant defender Noncombatant casualties should always be avoided if possible. They are innocent of starting the war and are not even involved in the fighting. Combatant defenders are also innocent of starting the war, although if they do commit war crimes (killing noncombatants needlessly, for example) then they would be considered an aggressor. For this reason, their casualties should also be kept to a minimum. However, due to the nature of combat, their casualties are practically inevitable. Combatant aggressors, however, are not innocent of war crimes. Killing a combat aggressor is considered just because doing so is in self defense or the defense of another. Therefore, for proportionality purposes, combatant aggressors can be left out of the equation. However, keep in mind the pragmatic reasons for reducing combatant aggressor casualties that I mentioned earlier.

The second jus in bello consideration – the one that this paper is concerned with - is the distinction between combatants and noncombatants and the concept of noncombatant immunity. As I have already said, noncombatant casualties should be kept to a minimum. Some combatants are easy to recognize. The most obvious of these are the soldiers and other military personnel that are directly involved in the war. Others are less clear and more debatable. For example, is an unarmed villager who scouts for the military and points out troop positions a combatant? How about if that villager is just a child? Is someone who designs or produces guns and other weapons a combatant? If so, are they still a combatant if they are off duty? How about a farmer whose crops feed some soldiers? By applying the legalist paradigm we can come to some clear answers to these questions. First, we should look at how we think any criminal should be treated. Suppose, for instance, that person A breaks into the house of person B. He shoots and kills person B, steals some valuables, and then leaves. Person A is obviously involved in the crime and is a criminal. Suppose there was a person C who mapped out person B’s house, showing person A places of easy entry and providing him with information regarding person B’s schedule. We would consider him an accomplice to murder assuming he knew person A’s intent. Person C would be punished even if he is a child, although it would likely be less severe. A person working at the factory where the gun was produced would not be found as an accomplice to the murder. The farmer who grew some of the food that Person A consumed would definitely not be held accountable.

The only people responsible for a crime are those that are directly involved with it. Using the legalist paradigm, that concept should also be applied to times of war. The difference is that punishment cannot always be the same. A soldier rarely has the liberty to take prisoners in a fight. It is often a kill or be killed scenario. However, if a soldier surrenders to the other side he is no longer considered a combatant because he is no longer directly involved in the war. By applying the legalist paradigm to jus in bello situations, we can determine the proper course of action in order to uphold morality and justice in times of war.

[1] p. 35

[2] p. 36


Blogger Wesley Gibbs said...

Overall I enjoyed your paper. I agree with your point that a soldier can only be justified fighting a war on the nonaggressor side, but I think that your point on their responsibility is a little off. I understand your point that the threat isn't enough to shift blame, but what if the country they fight for hides the facts from the people and portrays itself as the just side in the war. The soldier does not know that his side is unjust and so he believes that he is joining a just cause.

12:31 AM  
Anonymous Kim Morrison said...

This is a very interesting topic and one I'm sure will provoke quite a discussion in class. Good paper overall but I don't particularly agree with you when you say that a soldier can choose whether or not he goes to war. It is true that many choose to join the armed services with the knowledge that at some point they will be called to fight a war but most do not join just to go to war. However, some did after 9/11 but that has to do with the whole patriotism thing you mentioned. Which is a noble reason but, as you said, not the best. The customs of war you mentioned should be followed and for those who do not follow them, punishment should be the consequence. But as we all know, not everyone believes they should have to follow rules. I'd also like to point out that soldiers are not permitted to disobey orders. The only problem is when an order gets someone killed there's always a problem. They should have known better right? Like it or not, brainwashing does occur in our armed services and the majority of soldiers do exactly as they are told. The chain of command exists to have control, organization, and structure. Supposedly this helps to limit mistakes and when mistakes are made it should be easier to find out who messed up. But of course this doesn't always happen. I do agree with you about the difficulty of determining some combatants from noncombatants. When a 15 year old boy has been taught to set roadside bombs and fire an automatic weapon or a woman uses her charms to get information are they considered combatants? I certainly think so. Their purpose is to get you hurt or killed which clearly makes them combatants and as combatants they are subject to the same consequences as soldiers fighting for the opposite side.
This week's class should be interesting.

1:38 PM  
Anonymous Mitch Ullman said...

I have one major objection to this paper. It says nothing to the participation of legislators in the proposal/declaration of war. Aren't these people more culpable than, say, an intellignce officer in the overall cause/effect chain?
I also feel rather squeamish about the idea that rules of engagement are merely convention. There must be some form of measurement that can be used to weigh each situation as it comes up rather than having a set of seemingly arbitrary rules that change whenever the enemy decides that he doesn't want to follow them any more.

2:03 PM  
Blogger Drew said...

I liked it, i understand the concept of how the fighting on teh agressive side only justifys your reason for fighting. Although some people do have more nationlistic views that allow them to fight even if there country was the agressor, over all good job

2:41 PM  
Blogger Adam Johnson said...

I agree with Mitch in that the legislators or whomever actually declare the war have rather obvious responsibility/guilt for whatever goes down. But I'm not willing to completely remove individual responsibility from the soldier either. It seems that if you follow this point to the ultimate conclusion, you end up with either the soldier's contract is illegitmate in the first place, or the soldier is mentally unfit to enter the contract. Neither of those have much appeal to me.

4:24 PM  
Anonymous Jimmy said...

Steven, i totally agree with your ideas on patriotism. The idea that we must support our country no matter what is bull shit to me, it is as if morality takes a back seat to patriotism. This i can't possibly agree with. I also liked your ideas on the legalist paradigm. This does seem to be a way we can consistantly carry out a war. I think most people will argue with you on the pratciality of this issue, but i think you are right we do need a more proper way to go about war and to minimize as many non-combatants as possible.

4:39 PM  
Anonymous jamie mccall said...

The legislature factor is certainly critical here - it is unreasonable (uh-oh, doing that reality thing again) to expect that a solider in a country who has been ordered by his congress to fight should simply refuse and risk great punishment (dependant on the country, of course...I think WWII Germany would be harsher than say, the modern US). This is especially true when we deal with drafted armies...however...I can see the point that when we are dealing with a volunteer army, those who signed up knew they had the possibility of fighting in a war that might be unjust.

4:50 PM  
Anonymous Jeremy Page said...

I disagree with the idea that a soldier is only justified in fighting for the nonagressor. I would say that the solider is directly responsible for the orders he/she obeys. Fighting in an unjust war should not be the responsiblity of the individual soldier, but his/her country's. Anyways, the paper is well done and enjoyable.

4:53 PM  
Blogger Rick said...

Steven says-
>>Since when has “he told me to do it” ever been a viable excuse for a crime? While the answer to this is an obvious “never,”...>>

Actually, I believe it was in the trial of Lt. William Calley, that a soldier was first found guilty of following an illegal order (massacre at my lai). So the "he told me to do it" line works in alot of cases. But, and I think this is a important issue, war and crime are two different things. Like Walzer says, killing in war is not murder (in most cases).
As far as soldiers refusing to fight, a soldier can refuse an unlawful order, but declaring war is not an unlawful order. Congress has the power to declare war, granted by the Constitution, and Walzer be damned (mitch too, lol), there are no stipulations in the Constituion about the justness of a war. My suggestion is, that if someone is that concerned about the moral conflicts that may arise as pertains to their service in the military...don't join!

>>Like it or not, brainwashing does occur in our armed services and the majority of soldiers do exactly as they are told.>>

Can also be applied as:
"Like it or not, brainwashing does occur in our colleges and universities and the majority of students think exactly as they are taught." The "brainwashing" that goes on in the military is a tool to save your life when bullets are flying by your head.

>>I agree with Mitch in that the legislators or whomever actually declare the war have rather obvious responsibility/guilt for whatever goes down. But I'm not willing to completely remove individual responsibility from the soldier either. It seems that if you follow this point to the ultimate conclusion, you end up with either the soldier's contract is illegitmate in the first place, or the soldier is mentally unfit to enter the contract.>>

Again, read the Constitution. Not only does Congress have the power to declare war, but it also has the responsibility to make the rules and regulations that govern military conduct. If a soldier breaks those regulations then Congress is guilty?
The oath sworn by soldiers is -to support and defend the Constitution of the United States against all enemies, foreign and domestic-(paraphrase). In no way is it unconstitutional for a soldier to go to war, so the contract is not illegitimate. And to declare that a soldier is mentally unfit to enter the contract...I SWORE THAT OATH! WITH FULL KNOWLEDGE OF WHAT IT MEANT. AND IF I HAD TO KILL SOMEONE ELSE TO PROTECT YOU, I WOULD DO IT. You sleep safe at night because those "mentally unfit" soldiers see to it.

6:00 PM  
Blogger Adam Johnson said...

Rick - I did not mean illegitimate in the legal sense, but rather the moral sense (crazy I know!). As in, if you enter a contract to do an immoral thing, the contract itself is illegitimate and you are free of any obligation to it.

As you established, Congress has ****political**** legitimacy to declare war and make rules of governing military conduct. If Congress makes shitty rules, or declares an immoral war and order soldiers to do immoral things, how on earth can you argue they are not at least partially responsible for what happens? Now obviously, if Congress makes good rules, and declares a just war, and THEN a soldier does some immoral act of his own accord, Congress is not liable.

And thus, we come back to the individual responsibility of the soldier. The fact that you knew precisely what contract you entered and what the implications are very clearly indicates that you are mentally fit enough to enter the contract. My denotation of mentally unfit referred to the idea of someone entering a contract due to coercion or not knowing the exact features of said contract - it was not a low dig at military personel as you seem to have interpreted it. Returning again to my first statement, if this contract is illegitimate on moral grounds, it doesn't matter that you swore to it or you are legally bound to it, any moral obligation to it is evaporated.

8:59 PM  
Anonymous Jimmy said...

rick, i don't think steven is denying that that is how it is he is giving a suggestion on how it should be. The comparison is meant to show how we deal with criminals and how we deal with war criminals shouldn't be that different. When he says, "Since when has “he told me to do it” ever been a viable excuse for a crime?", he is not saying that in war this is not utilized he is saying that for a domestic criminal or any other domestic issue this has never worked. If this is the case why use it in war. I might be mis-representing steven, but this is how i understood it. know what i mean!

5:32 PM  
Blogger Rick said...

First, let me apoligize for my captalization outburst, I happen to hold the view that those who risk and give their lives for the safety and freedom of the rest of society are honoring the greatest moral obligation. You may disagree that this particular use of the military is right or just but that does not make it illegitimate, just as I may disagree that police should have the power to arrest someone for smoking a joint, but that doesn't make the policeman mentally unfit or the law illegitimate.
I could argue that abortion is **morally** wrong, but I think there is a legitimate legal right to it. You may think the war is **morally** unjust but I don't see how that makes it illegitimate.
I just wonder about the moral justification of standing by and doing nothing when moral atrocities are being committed on the entire world by harmful and hateful pre-elightenment religious ideologies. Whether other justifications were given or not, is there not a moral obligation to the entire world, to remove from power those who wish to destroy and deny basic human freedom?

6:18 PM  
Anonymous Mitch Ullman said...

War and _Morality_


10:39 PM  

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