Chapter Two: Theories of Noncombatant Immunity
If we hold in abeyance the derivation of noncombatant immunity from Nagel's absolutist ethics, we can pause to consider how else the rule of noncombatant immunity can be explained or justified. Here again we will by extension be dealing with the applicability of ethical theory to warfare. But now it will be with reference to a specific rule, and the test of an ethical theory will be how well it grounds this rule. Although this method may seem to put the cart before the horse, or to be a petitio principii, we do not in fact assume here that the principle of noncombatant immunity is independently valid. What we are after here is neither an ethical theory that will accord with a generally accepted practice, nor one that will make the generally accepted rule obligatory. Instead we want an ethical theory that will elucidate the conception of war that makes the rule of noncombatant immunity necessary.
The choice of noncombatant immunity, as opposed to some other purported rule of war, stems from the fact of its general acceptance and, as we shall see, a complete lack of agreement on its basis or status. This points to either an inconsistency in the received tradition of the rules of war, or a lack of understanding of the nature of war that grounds noncombatant immunity as well as the other rules of war. My contention, given the persistence of the principle of noncombatant immunity in the Western tradition, is that the latter is the case. And if this is so, it is necessary to take up with that rule of war that seems most to resist explication in order both to arrive at a definition of war that is consistent with it, and to specify the moral force of the rule. Thus we start with the rule, deduce the concept of war that is implied by that rule, and then return to the other rules of war, and the question of the use of war at all, with that concept as the foundation for the ethics of war.
The basic rule prohibiting attacks on noncombatants finds expression throughout the western tradition. The most recent is in the Geneva Protocols of 1977:
ARTICLE 48--BASIC RULE
In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.(1)
Hugo Grotius' treatment of the rule in his classic work De Jure Belli ac Pacis (1625) is ambiguous, but he does state it, giving his usual plethora of classical citations in support of it:
It is the bidding of mercy, if not of justice, that, except for reasons that are weighty and will affect the safety of many, no action should be attempted whereby innocent persons may be threatened with destruction.(2)
The still earlier just war tradition affirmed the principle of discrimination as part of the ius in bello, or justice in war. This also has had a recent statement in the Catholic Bishops' pastoral letter on war and peace:
Discrimination: [T]he lives of innocent persons may never be taken directly, regardless of the purpose alleged for doing so. . . . Just response to aggression must be . . . directed against unjust aggressors, not against innocent people caught up in a war not of their making.(3)
Mitigation of Suffering
In the first place, attacks on persons not involved in a conflict seems
somehow inherently wrong. The wrongness of the act, however, is precisely
what needs to be established; or that is, we must state why it is
wrong. The most immediate reason is the negative reaction we have toward
such actions. Pain and suffering are things that most human beings instinctively
shy away from. But war itself is usually full of these, so why should the
pain and suffering of noncombatants be singled out for special consideration?
Judith Shklar, in her work Ordinary Vices, poses this question.
Why is it that wanton pain inflicted upon helpless beings, especially children and animals, is so revolting? Why does the defenselessness of these victims move even quite harsh people? There is a cluster of reactions at work here, among which contempt for cowardice must surely be one. Compassion surely plays its part. If pity is an instant identification with a weak suffering being, then the fact that we all were children once, and remember our vulnerability, readily accounts for the normal response to the torturing of children. However, we pity all sufferers, not only the pain of the weak victims of cruelty.(4)
The general fact that we pity all sufferers, however, undercuts the discrimination involved in a principle of noncombatant immunity. Rather than compassion, Shklar maintains, what causes our revulsion at the suffering of the innocent is its cruelty.
Shklar emphasizes cruelty for several reasons. First, it was a primary
concern of Montaigne, one of the focal points of the work, but also because
"putting cruelty first" seems to be the basis of a liberal humanist tradition
of which we are a part. The revulsion we feel in the face of cruelty is
part and parcel of that tradition.
It seems to me that liberal and humane people, of whom there are many among us, would, if they were asked to rank the vices, put cruelty first. Intuitively they would choose cruelty as the worst thing we do.(5)
But beyond this, and relevant to our purposes here, "putting cruelty first" does discriminate between the sufferings of combatants and those of noncombatants. And it does so in contrast to questions of justice.
The injustice of cruelty obviously does arouse outrage, but that does not completely account for one's horror at the brutalization of children. Only those who put injustice absolutely as the first of evils might even think so. Such people would also say that in wartime one should spare defenseless civilians because they have not consented to the war to the same degree as have soldiers armed for battle. Consent is assumed to create a mutual right to take military action, and civilians cannot be said to have agreed to that, since they are unarmed. But common sense simply rebels against this legalistic distortion of experience.(6)
The injustice of brutalization does not explain the particular horror it evinces, nor the discrimination we make with regard to particular classes that suffer it. The moral difference must be something about the victims of violence that, regardless of their legal status, makes the cruelty inflicted upon them more of an outrage than the normal outrages of war.
Surely it is the helplessness of civilians that exempts them from attack, not the absence of such consent as might be imputed to a conscript who is shooting at another draftee. It is thought to be crueler to sack a town than to kill armed men, but not because civilians suffer more pain or are more innocent. It is not only a pity or sense of justice that moves us. The sheer absence of courage also makes a cruel act naked, as it were. Without the courage to overcome the fear of genuine dangers such as those that men face in battle, cruelty is unmitigated by any compensating virtue. There are no extenuations and no veils. It is pure, unalloyed cruelty. The character of those who loot and ravage and who destroy women and children is one of enraged cruelty and nothing else. A brave soldier is simply a less repulsive character than a cowardly one. An armed foe at least has a chance to assert himself, to force his opponent to an effort of courage. He is, in short, neither as helpless nor as pitiable as an unarmed civilian.(7)
It is not that attacks on noncombatants are cruel in contrast to those on combatants. War is an arena of cruelty, and the only discrimination between these is the "nakedness" of cruelty to noncombatants. Thus this form of cruelty is one that we can clearly recognize as being wrong, and deserving of censure. But this is only a difference of degree: war itself insofar as it is cruel, is deserving also of condemnation. The presence of compensating virtues may make the revulsion of war less, but no amount of compensation can change the fact that war is cruel.
This is enough to give some basis to the idea that attacks on noncombatants should not be allowed in war. But notice that this liberal view does not base itself on pity, or that is with the intention of reducing suffering per se. This would require some distinction between the suffering of combatants and that of noncombatants, and some reasons to prefer the abatement of the one over the other, which have not been provided. Nor in this view is the rule to be grounded in justice, which is altogether too bloodless to measure up to the phenomena. Nor, for that matter, is it the cruelty of attacks on noncombatants, which would give reason to a rule against it, for attacks on combatants are also cruel. But here we can give an explanation for our revulsion on noncombatants being greater: in this case our revulsion is greater because the cruelty is greater, and the cruelty is greater because we see it more clearly, "without veils."
The basis for this distinction, then, comes down to the initial decision to "put cruelty first." This, accordingly, is based on our revulsion. "Cruelty, like lying, repels instantly and easily because it is `ugly.' It is a vice that disfigures human character, not a transgression of a divine or human rule."(8) Thus cruelty against helpless victims is not wrong so much as it is uglier than other forms of cruelty in war. Putting cruelty first would base noncombatant immunity on an aesthetic judgement rather than a moral or legal one.
But such an aesthetic concern for the treatment of others does not seem sufficient to overcome whatever interest we may have that necessitates, from our perspective, the cruel infliction of suffering. It only makes us feel bad about what had to be done. And so this orientation only produces an inclination toward noncombatant immunity, stronger than that against the cruelty of war itself, and also fails to ground the principle in any binding (ethical) fashion. For we cannot insist that our revulsion be shared by anyone else.
An Utilitarian interpretation takes the principle of noncombatant immunity to be a special case of the principle of proportionality. In general, the argument follows traditional utilitarian lines: one should seek to maximize good, or in a reading more relevant to warfare, to minimize harm or suffering. The grounds for minimizing suffering does not depend on the psychological predisposition for pity, as discussed by Shklar. It is instead treated as a self-evident principle, which according to Bentham, cannot be refuted.(9) Indeed as Robert L. Holmes comments "[I]t is not even possible to formulate utilitarianism other than as a principle".(10) Thus the requirement can be taken to be normative in more than a subjective sense.
When this principle is applied to war, however, it becomes clear that
its very generality does not allow for noncombatant immunity any standing
of its own. As Michael Walzer summarizes the position from Henry Sidgwick,
In the conduct of hostilities, it is not permissible to do "any mischief which does not tend materially to the end (of victory), nor any mischief of which the conduciveness to the end is slight in comparison with the amount of mischief." What is being prohibited here is excessive harm. Two criteria are proposed for the determination of excess. The first is that of victory itself, or what is usually called military necessity. The second depends on some notion of proportionality: we are to weigh "the mischief done," which presumably means not only the immediate harm to individuals but also any injury to the permanent interests of mankind, against the contribution that mischief makes to the end of victory.(11)
In seeking to minimize the suffering imposed in war, according to the utilitarian principle, one must always keep in mind the good to be gained by war, or the further suffering that might eventuate from a failure to do what is necessary for victory, even if this entails attacks on noncombatants. Thus the principle of noncombatant immunity cannot be held to be absolute. Instead it must be judged by it consequences. And thus only attacks on noncombatants which have no (or proportionately insufficient) good consequences can be ruled out.
But more problematic is that this interpretation brings into question why there should be a rule that specifically applies to noncombatants, when the same minimum necessary harm principle can apply equally well to one's own fighting force, or even that of the enemy. By assimilating noncombatant immunity to the more general principle of proportionality, the rule not only admits of submission to the rule of necessity (for the greater good), but loses its status as a principle at all.
The lack of discrimination involved in a general principle of minimizing suffering, then, does not explain why this rule should be applied to civilians or noncombatants any more than to combatants. If the nuclear attack upon Japan at the end of World War II did reduce the total suffering that otherwise would have occurred, even though much of that suffering would have been borne by the invading force, then on this principle it was justified. Otherwise we would have to provide some reason for avoiding the suffering of noncombatants, such as that their suffering is somehow more poignant or intense, that is, quantitatively greater. Failing that, the immunity given to noncombatants could actually make the suffering in war greater, although limiting it to those actually fighting.
This inability of utilitarianism to produce a rule of noncombatant immunity
while appearing to have some relevance is summed up by Michael Walzer.
With regard to the rules of war, utilitarianism lacks creative power. Beyond the minimal limits of "conduciveness" and proportionality, it simply confirms our customs and conventions, whatever they are, or it suggests that they be overridden; but that does not provide us with customs and conventions.(12)
Thus the role of calculation only comes into play in the context of such rules as previously exist on other grounds, or that is, is subordinate to them.
Anthony E. Hartle in his article entitled "Humanitarianism and the Laws
of War" examines the relation between two humanitarian principles, respect
for persons (HP1) and minimization of suffering (HP2) as grounds for the
laws of war. Using the example of a small commando unit behind enemy lines
that has taken prisoners, and which finds that it cannot either keep them
or release then without jepardizing its mission and so is faced with the
option of executing them, he points out that:
The two humanitarian principles appear to call for opposite courses of action in the prisoner example, a situation which indicates that different laws would be produced if one or the other of the principles were considered in framing laws concerning the treatment of prisoners.(13)
To determine which of these principles is in fact the basis of the laws of war, Hartle turns to the extant law, and in a manner similar to the one we are employing here, asks which principle grounds it.
We can hypothesize situations in which one course of action appears to be the logical choice if we desire to minimize suffering, while a different course of action is preferable if we are to respect individual persons as such. Our concern with the prisoner example and others like it, however, is that of first determining what the actual laws of war require and then identifying which of the two foundational moral principles underlies the existing law.(14)
As the law of war (as quoted from the American manual, The Law of Land Warfare) prohibits the killing of prisoners even in the circumstances of Hartle's example, he concludes that the law derives from HP1. The principle of the minimization of suffering still has application in the law of war, but Hartle maintains that it must be subordinate to the non-consequentialist principle of respect for persons. But if this is the case, utilitarian considerations cannot be the basis for a rule of noncombatant immunity, or for that matter cannot be a reason to override the rule as Walzer seems to suggest.
A more specific explanation for a general rule of noncombatant immunity stems from more partisan interests: the concern of any side in a war to spare its own noncombatants from the harm and suffering of being subject to attack. In some cases, this may in fact be the principal aim of the military action itself. But in war one is not able to provide a blanket of protection to one's own population, or at least one that is sufficiently impenetrable.(15) Noncombatants, because they are unarmed and dependent upon others for their defense (or offense), are always vulnerable. And this is as true of enemy noncombatants as it is of one's own.
From a native concern with one's own, then, and the inevitable vulnerability
of one's unarmed population in war, it becomes rational to agree with an
enemy that both sides grant immunity to the unarmed citizens of the other.
This agreement, then, turns a personal concern into a general rule
of noncombatant immunity. For Legal Positivists, indeed, only the existence
of explicit agreement could establish noncombatant immunity. However, the
reciprocal nature of such restraint in war provides only a conditional
basis for the rule. As Douglas P. Lackey says,
If the laws of war are conventions designed to produce efficiency through coordination, then the most that can be said for their binding character is that each nation is obliged, in the course of war, not to be the first to break the rules.(16)
During the American Civil War, General H. W. Halleck specified reasons for respecting the status of various noncombatants.
He listed three reasons to respect such a list at all times. (a) The limits of retributive justice forbid harming non-resistant enemies. (b) Such respect is self-evidently demanded to civilized persons. (c) The hope that the enemy will treat one's own noncombatants reciprocally.(17)
Our concern here, of course, is with the last of these. But this justification has a very specific application: the noncombatants protected by such a hope or actual agreement are usually those in the direct control of the enemy, and as this being the case to a large extent on both sides in terms of civilian populations is unlikely, the agreement concerns primarily prisoners of war.
The fact that reciprocity is not called upon alone by Halleck points to some difficulty with it as a basis for noncombatant immunity. Because the motivation is to minimize the suffering of one's own, the mechanism breaks down if there is a discrepancy between, say, the numbers of noncombatants held by each side, or the vulnerability of the respective civilian populations.(18) Even if this is not the case, if one side does not abide by the agreement, the status of noncombatants is lost, temporarily if the other side engages in reprisals with the intent of bringing the violator into compliance, permanently if they do not succeed or do not try.
The difference between reciprocity as a ground for noncombatant immunity and a more general utilitarian account, then, is that it specifies the suffering of noncombatants, especially POWs, as a special concern due to their vulnerability. The rule is then based not on such vulnerability absolutely, or even subjectively (as with Shklar), but on the mutuality of such vulnerability on both sides in a conflict. Thus if that mutuality is not present, or if partisan estimates of the utility of ignoring it are "greater" than the costs of increased suffering and violence, then the rule loses force.
Positions that hold that the suffering in war should be held to a minimum, then, seem to give some ground for a rule of noncombatant immunity. But such considerations are always subservient to larger judgments of the good to be served by engaging in war at all. And these judgment are almost always made from one side or the other, so that the good to be achieved by war becomes synonymous with the victory of that side. Thus when matters become serious, respect for noncombatant status becomes a luxury that can no longer be afforded.
The argument for noncombatant immunity here is based on an alleged matter of fact. It maintains that to attack noncombatants is not so much wrong in itself as it is useless for the purposes of winning a war. Rather than expending precious military force on the non-military population of the enemy, we should, and indeed must, direct our strongest efforts against their strongest forces.(19)
In this it agrees with the utilitarian principle which bans excessive harm. But it goes further in holding that attacks on noncombatants are always "excessive harm" because they can serve no military purpose.
This position salvages noncombatant immunity by denying that there can
ever be a choice between it and greater values to be attained through the
use of war. But this salvation is rather dubious, for it does so by destroying
the rule of noncombatant immunity in order to save it.
Whatever their practice, nations rarely claim any warrant to go beyond the requirements of military necessity. This betokens no great humanitarianism on their part; it is simply that violations of the principle of humanity serve no rational purpose in the conduct of war. To expend resources beyond what is required to attain one's objectives is pointless and may even be detrimental. The reason why the principle of humanity is of relatively little consequence is because it prohibits only what it would not be rational to do anyway.(20)
Not only does the doctrine of military effectiveness prove the validity of prohibiting attacks on noncombatants, but it does so by making the rule itself subject to other considerations, namely military ones. This seems to impoverish compliance with the rule, making such compliance costless, and therefore worthless in any moral sense. As Michael Glover puts the matter in reference to siege warfare,
It is hard to resist the conclusion that sparing the townspeople was more a question of cost-effectiveness than any concern for the safety of civilians.(21)
As with all arguments that depend on establishing matters of fact, this one is vulnerable to questions of empirical verification. Justifications of area-bombing in World War II maintained that attacks on populations centers were necessary to "break the will" of the enemy populace. Such attacks, as it turns out, actually had much the opposite effect.(22) But the point remains that if such attacks could be demonstrated to have military efficacy, this grounding of noncombatant immunity would have to allow that such attacks were justified. And since it would seem to be case that such efficacy has been assumed by strategists in World War II and after, the argument needs a much more explicit theory of war to demonstrate the error of this policy.
Without any other reason for noncombatant immunity, when the principle of military efficiency itself fails to apply it leaves the way open for such action where it is not in fact called for. The British policy of area bombing civilians in the early years of World War II has been taken to be justified, even while it is conceded that this action contributed nothing to the outcome of the war, merely because there was no other action the British military was capable of at the time. Such justification as area bombing had, then, was lost later in the war when other means were available.(23) But that such attacks on noncombatants could be countenanced even in the face of the lack of any military advantage to be gained by so doing suggests that a doctrine of military efficiency is not a sufficient grounding for the rule of noncombatant immunity. At most it serves as an argument for compliance only in those situations where the two coincide.(24)
Protection of the Prize
If we are skeptical about the claims of military efficiency, perhaps
it is the case that the conditions which ensured that the principle of
noncombatant immunity and military effectiveness coincided did at one time
obtain, even if modern warfare does not give much room for such happy circumstance.
This is a historical explanation for the origin of the principle of noncombatant
immunity.(25) The suggestion is that noncombatant
immunity is based more on the socio-economic conditions of Medieval warfare
than on the requirements of war in general. The very nature of what materially
were the causes and ends of war made it rational not to engage in attacks
on "civilians," for these noncombatants were not only not appropriate enemies,
but were in fact the prize of war.
The notion of non-combatant immunity seems to have its source not in religious or moral sensitivity but in a code of chivalry from the Middle Ages. Knights were professional soldiers; "there was no glory in armed combat with a nonknight." Besides, "noncombatant serfs, peasants, artisans, and merchants were the source of wealth of members of the knightly class." It was cowardly to attack an enemy through his non-combatant subjects rather than directly, and knights had a vested interest in protecting and supporting the non-combatants who were the source of their own wealth.(26)
The code of chivalry, springing as it must have from the class interests of those seeking to maintain their dominance of society by the practice of arms, must necessarily distinguish between members of the knightly class and those of the productive classes. The reasons for this, however, are confused. On the one hand, there is the pragmatic rationale for protecting productive persons, and even obtaining them, along with their associated lands, from other lords. The peasants were valuable, in a way that fighting men and their families were not, so one could afford to lose a few knights, but each peasant was to be shielded and protected.
The difficulty with this explanation is that it is somewhat substructural:
it isolates rational economic reasons for the particular practice that
were never expressed by the agents involved themselves. It shares many
of the difficulties of doctrines of class interest found in Marx, in that
it makes an agent of an abstract entity.(27)
Which brings us to the other hand: the conscious motive for respecting
noncombatant immunity was the inverse of the economic motive. One did not
attack peasants not because they were too valuable, but rather because
they were too base. The coincidence of both of these allows for the ambiguous
interpretations of noncombatant immunity which extend into the early modern
period, as illustrated by James T. Johnson.
In the Middle Ages, again, knightly protection of noncombatants derived from two considerations: the desire to gain honor in combat and the need to protect the economic base of the knight or his feudal lord. The former tended to protect those persons not under arms, while the latter tended to keep both land and peasantry safe from attacking and looting. The latter consideration is exactly the same as that of the eighteenth century sovereign's wars: to keep the economy that sustained the sovereign as undisturbed by the war as possible. If the focus of the former reason is shifted slightly away from the desire for honor in combat, a corollary appears: the need to employ the force available against the enemy most likely to do one harm. The principle of economy of force is thus inseparably linked to the desire for honor: both require the knight to use his arms against other men in arms, not against the populace of a territory generally. Efficiency in use of available force and keeping intact the economic base of lands possessed or coveted-- two considerations central to the limited war idea as it emerges in the eighteenth century-- thus appear already in the Middle Ages as factors leading the knightly class to grant noncombatants a measure of immunity from the destructiveness of war.(28)
The implications of this explanation of the origins of noncombatant immunity are obvious. Aside from its explanatory force, the economic foundation of noncombatant immunity has no normative value. But when we apply the same explanatory framework to the modern situation, it equally shows that noncombatant immunity no longer has even an economic rationale. Once war is no longer between parties of the same class whose economic base is agricultural, but instead between competing industrial economies or imperialist states, the rationale for noncombatant immunity was lost.(29) Again, as we asserted with regard to realism, to move from this explanation to a normative conclusion is invalid, but the implication remains whether explicitly stated or not. Needless to say, the change in the economic nature of war, no less than those in its putative ideological grounds, makes the principle of noncombatant immunity archaic.
The Greater Prize: The Monopoly of Force
Johnson also mentions the interests of the knightly class in retaining
a monopoly of force, that political instrument which much later Max Weber
was to see as the essence of a state.(30)
This is a much more subtle interpretation of the relation between the warrior
class and noncombatant immunity.
. . . the protection accorded noncombatants by the chivalric code was rooted in self-interest, though this time it was the interest of the knightly class to hold chivalry separate from the rest of medieval society and superior to it.(31)
The granting of immunity was only a gift(32) that was allowed by that separation and superiority, rather than an obligation incurred by the higher duty to protect the rest of society. And thus, in Johnson's estimation, the privilege could in principle be withdrawn whenever the interests of the knightly class called for it:
. . . the chivalric code allowed for actions outside the bounds set by noncombatant immunity if necessary for the higher purpose of the code: knightly superiority. This was a doctrine of relative, not absolute, protection of noncombatants.(33)
Again, however, this interpretation is aimed at explaining how it is that at much later periods persons could conceive of military necessity overriding the rule. If the chivalric origins of noncombatant immunity allowed of its relative nature, modern observance of the rule also will be relative, or non-existent, depending on the interests of those in a position to grant immunity from attack. But again, as with the previous justification, the fact that noncombatant immunity has roots in the socio-political conditions of the Medieval ages only tells us that it cannot be justified by recourse to those conditions. It is not to say that noncombatant immunity cannot be justified. For such a conclusion we would have to argue that not only have the conditions of war, but its very nature and purpose have changed in the course of history.
Accumulation of Honor
The historical origin of noncombatant immunity may be seen as a possible way to explain how it is that this principle has become part of the tradition of just war, as well as a part of modern international law. If it were the case, however, that the only source of the rule of noncombatant immunity was in the socio-economic conditions of feudal Europe, the ideal would have perished at the same time as those conditions disappeared. But this was not the case.
The explanation for the survival of noncombatant immunity, then, is
to be found in a conceptual framework which can exist in the absence of
the material conditions discussed above. In the European context this points
to the doctrine of chivalry. Michael Walzer singles out this origin, and
points to its continuity in modern ideas:
Even when world views and high ideals have been abandoned-- as the glorification of aristocratic chivalry was abandoned in early modern times-- notions about right conduct are remarkably persistent: the military code survives the death of warrior idealism.(34)
The ability of notions of right conduct to survive not only the transformation of socio-economic conditions but also the abandonment of world views suggests that the conceptual framework that entails these ideas is not purely dependent upon either. It is this fragmentary world view, or a conceptual framework of war, that grounds such rules as that of noncombatant immunity. Walzer maintains that "even fundamental social and political transformations within a particular culture may well leave the moral world intact or at least sufficiently whole so that we can still be said to share it with our ancestors."(35)
But others are not so sure that the death of "warrior idealism,'' of
the values and purposes of medieval warfare, does leave some residual foundation
for chivalrous practices in war. Douglas P. Lackey, in his book The
Ethics of War and Peace, asserts that the principle of noncombatant
immunity does come from the purposes of earlier forms of war:
Historically, the idea of noncombatant immunity developed in the High Middle Ages, as part of the medieval traditions of chivalry. Chivalry presented the ideal of the virtuous knight: courageous in battle, fair with enemies, compassionate toward the weak. To act in violation of the principle of discrimination was to use force contrary to chivalrous virtues. It takes no courage to kill women and children, and little more to kill and enemy who has laid down his arms. The moral content of the principle of discrimination, on this account, consists in the fact that respect for noncombatant immunity is a mark of a virtuous character.
The notion that war is the opportunity for members of the military class to attain honor by demonstrating their virtue means that if this function is no longer realistic, it can no longer serve as a basis for the principle of discrimination.
But the historical connection between chivalry and noncombatant immunity cannot, by itself, show that respect for noncombatant immunity is morally required. Since good moral character is something that is possible for each and is required for all, the moral quality of chivalrous virtues can be established only by demonstrating that everyone is morally obliged to be a knight-- and that demonstration cannot be supplied. . . . Certainly chivalrousness is a virtue, but it is not obviously a moral virtue. It is a mark of genuine moral virtues that people of good character act not only in accordance with moral virtues but also for the sake of them: the just man does just things, and does them because they are just. It would be perverse, in analyzing twentieth-century wars, to say that soldiers are placed on the battlefield for the purpose of exhibiting chivalry.
The fact that the principle of noncombatant immunity is tied, in its origin, to a particular historical moral ideal means that with the passing of that ideal the moral requirements of that ideal also lapse, unless they can be established on other universally binding grounds. And it is just this that Lackey asserts, particularly in view of the nature of modern warfare.
Other features of war, particularly modern war, differ from the knightly setting so sharply as to undercut the applicability of chivalrous concepts. Medieval knights, at least in legend, fought each other on roughly equal terms, one on one, with similar equipment. In all wars from antiquity to the present, victory is usually obtained by the side with the un-equal advantage: the side with the larger phalanx, the more men engaged in the "push of the pike," the larger cavalry, the bigger guns. In contemporary war, men in tanks and armored vehicles and bombers kill men not in tanks or armored vehicles or bombers. The idea of courage in equal combat is largely absent in these situations: the bomber pilot and the tank commander take risks on occasion, but on many other occasions they kill in battle with little risk to themselves; the same is true of men in the artillery and those engaged in laying mines. The guerrilla leader who overwhelms an isolated outpost, or the field commander who sends a battalion against a company, is not fighting fair by knightly standards. From this we should infer not that contemporary war is wicked, but that the knightly standards are irrelevant.(36)
The reality that underlies "all wars, from antiquity to the present," is that victory is obtained by superior advantage. In view of this basic realist position, it indeed does seem that the knightly concepts of chivalry are foreign to the reality of war.(37) If war is about victory, and victory comes from the inequality of advantage, any limitation on action that works against advantage cannot but be "inapplicable". And since the principle of noncombatant immunity confers no advantage (at least not in terms of force), and indeed adhering to it in some circumstances can be positively disadvantageous, it is as such inapplicable to war.
More to the point is the inference to be drawn from this historical explanation: not only are knightly standards irrelevant, but if the law of war as we now find it has evolved out of such unrealistic notions of armed conflict, it too is to be dismissed. We do not share a moral world with our ancestors.
The difficulty with Lackey's interpretation is precisely whether the idea of the purpose of war that he attributes to chivalry is correct. Equally questionable is the concept of war that he attributes to the modern world. Even though Walzer retains a continuity between the two, he also admits of a conflict between them, which again is derived from the historical disparity of concepts of war.(38) At most, Walzer derives what he terms "the moral equality of soldiers" from the tradition of chivalry.(39) The grounds for noncombatant immunity lie, for him, elsewhere.
The inability of the previous bases for noncombatant immunity to provide for a principled adherence to the rule, either by subsuming it under general utilitarian principles of the minimization of harm, or the requirements of military efficiency, or for that matter by attributing it to archaic structural or ideological contexts, leads to attempt to found the principle of noncombatant immunity on other more modern and universal grounds. These must, accordingly, have nothing to do with the historical conditions or practices of war, or for that matter with other, more general principles which would allow the principle of noncombatant immunity to be suspended. And so the principle of discrimination is to be founded on humanitarian grounds.
Here we have the idea that immunity from attack is the right of the noncombatant, a right that should be respected regardless of the perceived necessity of such an attack. Walzer refers to this as the deeper foundation of the war convention:
The war convention rests first on a certain view of combatants, which stipulates their battlefield equality. But it rests more deeply on a certain view of noncombatants, which holds that they are men and women with rights and that they cannot be used for some military purpose, even if it is a legitimate purpose.(40)The Geneva Convention, its First Protocol, and the Universal Declaration of Human Rights all insist upon the fundamental rights that persons have against violence, specifically, not to be murdered, tortured, subjected to corporal punishment, or mutilated, and against outrages to their personal dignity.(41) The attempt to establish the rule of noncombatant immunity in international law, while it does aim at amelioration of the suffering of war, is based fundamentally on the application of these rights of humanity.
James Turner Johnson, whose views on the origins of noncombatant immunity
in chivalry we discussed above, plants the other leg, so to speak, of the
rule on the interests of the church. The Church sought to protect itself
from the ravages of war, and so argued for the inviolability of itself
and its personnel. But gradually this protection was extended to include
other classes of people who did not directly participate in war. As such,
the justification for immunity shifted from a particular interest to a
general right of anyone not involved in the waging of war.
In the canon law, those persons named as noncombatants are spared the ravages of war by simple justice. They are not making war; so they should not have war made against them. This is their right, which only they can relinquish, as they would if they took up arms or allowed soldiers to hide among them. Quite apart from the difficulties the Church encountered in enforcing its law under conditions of actual warfare, the central point is that the noncombatant, in the Church's conception, deserved his treatment by right.(42)
But as, in the development of the doctrine, this principle was not initially apparent, the specification of noncombatancy under the name of The Peace of God took the form of lists of classes of persons immune from war.(43)
Taking the route of specifying who was a noncombatant before coming to terms with a definition of what constitutes noncombatancy avoided the problem which has plagued modern attempts to guarantee immunity. Starting with the universal right to be free from attack in war, the specification of noncombatancy has something more of a prima facie status, but the practices of modern warfare, where the military class is not cleanly separate from the rest of society, make the determination of such status more difficult. In a war between modern states, to some extent every citizen is involved in the waging of the conflict. Thus the drawing of the line between combatants and noncombatants, if it is still possible, becomes problematic.
Against those who would maintain that such distinction can no longer
be made, Walzer upholds the absoluteness of the distinction, even if it
is fuzzy, and even in the face of its violation. International law, while
insisting on the rights of persons, is faced with the competing claims
of national sovereignty and military necessity. The authors of New Rules
for Victims of Armed Conflicts recognize this in their commentary on
Article 51 of the first Geneva Protocol:
It has been suggested by some that the rules of Section I of Part IV would indirectly abolish the conduct of armed conflict by making it impossible to wage war under these rules in populated areas. The negotiating record, however, shows that the Conference rejected proposals which went beyond the purpose of avoiding collateral losses which are excessive in relation to the concrete and direct military advantage anticipated from attacks directed against military objectives.(44)
The danger, so far as international law is concerned, is that if the rights of noncombatants are put forth too strongly, it would by conflict with the interests and practices of states make the rule inconsequential to the actual conduct of war. Lester Nurick is explicit about this in his 1945 article, "The Distinction Between Combatant and Noncombatant in the Law of War":
The writer has no desire to play the part of the Devil's Advocate, but no purpose would be served if the next Convention on the Rules of War adopts a set of rules which in practice would be meaningless. . . . At best, the rules may act as ameliorating influences on the horrors of war. In the long run international law and relations between states will be served best by a realistic recognition of the nature of war and the adoption of rules which will not run directly counter to the practice of belligerents.(45)
There is a tendency to place the absolute nature of human right, with regard to war, under the more pragmatic concern of the mitigation of suffering. And this brings into question the status of human rights as a basis for noncombatant immunity, for it seems that when the pinch between theory and reality comes to the fore, human rights is only a means to the practical end.
In the Interests of Peace
Another possible justification for a rule of noncombatant immunity is
to be found in a basic requirement of the justification of war: war is
for the sake of peace. This forms one aspect of the ius ad bellum
of just war theory. Where the end of war is peace, the means of pursuing
war cannot contradict that end. This establishes an immediate connection
between the moral ends of war and its moral conduct. We find a formulation
of this in the sixth article of Kant's Perpetual Peace:
No nation at war with another shall permit such acts of war as shall make mutual trust impossible during some future time of peace: Such acts include the use of Assassins (percussores) Poisoners (venefici) breach of surrender, instigation of treason (perduellio) in opposing the nation, etc.(46)
While Kant does not mention attack on noncombatants in this article, it must be included. As with the acts listed, attacks on noncombatants tend to make a war total, or are in fact what defines total war. As such, they are acts that are unforgivable, and which make future mutual trust impossible.
These are dishonorable stratagems. Some level of trust in the enemy's way of thinking (Denkungsart) must be preserved even in the midst of war, for otherwise no peace could every be concluded and the hostilities would become a war of extermination (bellum internecinum).
This observation finds support in the actual effects of attacks on noncombatants. Where such attacks were justified as contributing to the war effort by breaking the morale of the enemy, it appears that they in fact have the opposite effect, for indeed the idea of surrendering to an enemy who has no scruples about attacking civilians is hardly appealing.(47)
Grotius ends his De Jure Belli ac Pacis with several chapters
on the subject of good faith. In the conclusion to book III he states:
And good faith should be preserved, not only for other reasons but also in order that the hope of peace may not be done away with. For not only is every state sustained by good faith, as Cicero declares, but also that greater society of states. Aristotle truly says that, if good faith has been taken away, 'all intercourse among men ceases to exist'.(48)
The use of stratagems which violate good faith, then, are not to be avoided merely because of the suffering they inflict, or that they violate human rights, etc., but because they react upon the very basis of the political state. Grotius continues with an admonition to recognize the self-defeating nature of such actions:
It is, then, all the more the duty of kings to cherish good faith scrupulously, first for conscience's sake, and then also for the sake of the reputation by which the authority of royal power is supported. Therefore let them not doubt that those who instil in them the arts of deception are doing the very thing which they teach. For that teaching cannot long prosper which makes a man anti-social with his kind and also hateful in the sight of God.(49)
The preservation of humanity, in the sense expressed by Kant and Grotius, is not only a desirata or a requirement for the justice of a war, but is essential to the existence of humanity itself.
Where the foundation of noncombatant immunity upon human rights places
an external restraint upon the practice of war, the interpretation of the
just war tradition by Paul Ramsey seeks to establish both the legitimacy
of war and the immunity of noncombatants on the same grounds. To begin
with he argues against the idea that the justified use of violence constitutes
an exception to Christian ethics. For Ramsey, if the use of violence is
allowed, it must be required. Thus the use of violence by Christians will
not be an exception but rather an expression of Christian conscience.
The justification of warfare and of Christian participation in it was not actually an exception (certainly not an arbitrary one, or a compromise from the purity of Christian ethics), but instead an expression of the Christian understanding of moral and political responsibility.(50)
As an expression of this understanding, the use of violence then becomes not merely allowable, as an exception to the commandment "Thou shalt not kill," but morally necessary as an expression of Christian love.
It was an expression of the Christian understanding of political responsibility in terms of neighbor-regarding love. It was, and is, a regrettably necessary but still a necessary and morally justifiable expression of our being with and for men, as Christ was the man for other men. Christian love was the influence that shaped this conclusion. Therefore, the just-war theory states not what may but what should be done.(51)
The interesting further implication of basing not only the right but indeed the duty to pursue a just war on the love of the neighbor is that the same love requires that we do not directly attack noncombatants. Where other justifications of noncombatant immunity admit of conflict between the good to be achieved through victory, even if this means violation of the rule, and the good to be gotten by observing the rule, Ramsey's derivation of both the just war and noncombatant immunity from the same source makes this impossible.
The Christian is commanded to do anything a realistic love commands, and he is prohibited from doing anything for which such love can find no justification. If combatants may and should be resisted directly by violent means to secure a desired and desirable victory, this also requires that non-combatants be never directly assaulted even to that same end. When out of Christian love or from definitions of justice inspired by love it was concluded that the death of an enemy might be directly intended or directly done for the sake of all God's other children within a just or a just endurable political order by which God governs and protects human life in a fallen world, this also meant that such love could never find sufficient reason for directly intending and directly doing the death of the enemy's children in order to dissuade him from evil deeds.
Despite the fact that the indirect killing of noncombatants may in fact be consistent with Christian love for them, this position is remarkable in that it gives a basis for noncombatant immunity within the justification of war itself, rather than on external considerations. Unfortunately, this justification is particular to the traditions of only one of the religions of the world, so that its assertion of noncombatant immunity remains parochial.
The Scholastic tradition on war, beginning with Augustine, equates the
prosecution of a just war with the enforcement of justice. The status of
persons in an enemy state, then, must follow from their culpability in
the wrong which the war is to redress. The term used to denote those not
subject to attack, accordingly, is "innocent" rather than "noncombatant".
In addressing the question of "whether it is lawful in war to kill the
innocent," Franciscus de Victoria demonstrates the connection between the
absence of wrong and immunity from (justifiable) attack in this paragraph
from his De Indis et de Ivre Belli Relectiones (1557).
35. With a regard to this doubt, let my first proposition be: the deliberate slaughter of the innocent is never lawful in itself. This is proved, firstly, by Exodus, ch. 23: "The innocent and righteous slay thou not." Secondly, the basis of a just war is a wrong done, as has been shown above. But wrong is not done by an innocent person. Therefore war may not be employed against him. Thirdly, it is not lawful within a State to punish the innocent for the wrongdoing of the guilty. Therefore it is not lawful among enemies. Fourthly, were this not so, a war would be just on both sides, although there was no ignorance, a thing which, as has been shown, is impossible. And the consequence is manifest, because it is certain that innocent folk may defend themselves against any who try to kill them.(52)
The idea that just war is concerned with the righting of wrongs, where no other redress is possible, necessarily includes the requirement that those who are not guilty of wrongdoing are not to be punished by the conduct of the war. The difficulty is that war lacks what is essential to a juridical proceeding: the impartial determination of guilt. For Victoria, as for Augustine and Ramsey, the allowance that war can at times serve the cause of justice is dependent on the existence of objective justice in the world: that is to say, it can never be the case that justice lies on both sides. And even granting the existence of such justice, the problem of ascertaining it still remains.
And the determination of the guilt or innocence of individuals is even
more problematic. It may be the case that those fighting an unjust war
do so with the firm conviction that their side is right, indeed, this is
most often the case. Others may be culpable for the war, even though they
take no part in the actual fighting. Thus the distinction of noncombatants
and that of innocents does not coincide. Robert Holmes points out that
the inclusion of intent, paired with the inability of the individual soldier
to know which side is just in a war, leads to the inability to make a determination
of innocence or guilt:
In light of our earlier analysis, we can now say that if the soldier participates in war without the feeling of cruelty, enmity, and love of violence that Augustine says constitute the evils of war but acts rather only out of duty to his temporal king, he is innocent. . . . This does not mean that we can know for certain whether any given soldier is participating blamelessly in a war, anymore than we can know whether any given person is righteous in the eyes of God. He may be acting from fear, cruelty, or love of violence. But it is possible that his participation is permitted in the eyes of God, just as it is possible that a state acts from true as well as temporal justice.(53)
Victoria admits that it is not always possible to determine the side of justice in war, and suggests this is a reason for moderation in the use of military force. But Holmes's objection undercuts the determination of guilt at all, for the substitution of intent for objective guilt in the face of "invincible ignorance" removes the justification for war from human hands.
This creates a problem for any state proposing to go to war, for it complicates the matter of determining whether the outward acts one takes as meriting punishment actually spring from evil motives.(54)
Only God, then, can know completely the hearts of men, and for humanity to usurp this role of the divine judge without this knowledge is probably slightly sacrilegious. But without this determination of guilt, one would have to admit the possible innocence even of one's enemies, and even enemy combatants. And here the basis of noncombatant immunity would have to entail its dissolution into a pacifism based on human ignorance (what Cady refers to as "epistemological or fallibilist pacifism"(55)). Or the possibility of just war, and thus the discrimination of noncombatants, would have to be made on other considerations. Laura Westra seems to come to this conclusion.
To sum up, an analysis of the notion of innocence shows that it is not possible to establish it beyond a reasonable doubt on a global scale, so that a pacifist stance appears to be the only one that can be judged moral.(56)
But Westra's analysis does not take innocence itself to be problematic, but only its appraisal on a large or global scale. This still allows for just war based on the guilt of the enemy, but limits this to individual enemies.
Indeed, the only possible exceptions to pacifism would be individual self-defense and a localized war of liberation, using small weapons, fought against unjust rulers.(57)
However, the concept of a just war which underlies this rendering of the principle of noncombatant immunity has been far more influential than our cusory treatment of it here suggests.
In The Philosophy of Law (Metaphysische Anfangsgründe
der Rechtlehre, part one of
Die Metaphysik der Sitten), Immanuel
Kant gives a reason for the observation of rights in war.
Defensive measures and means of all kinds are allowable to a state that is forced to war, except such as by their use would make the subjects using them unfit to be citizens; for the state would thus make itself unfit to be regarded as a person capable of participating in equal rights in the international relations according to the right of nations. Among these forbidden means are to be reckoned the appointment of subjects to act as spies, or engaging subjects or even strangers to act as assassins, or poisoners (in which class might well be included the so called sharpshooters who lurk in ambush for individuals), or even employing agents to spread false news.(58)
The restriction would seem to hold even more strongly for states not forced to war. But this is a curious concern. Usually, as we have seen, the concern over violations of the rule of noncombatant immunity have to do with the status of the victim, with varying degrees of weight given to the conception of the greater good. But here Kant points out that such violations do not only affect the victims, but the perpetrators as well. Walzer towards the end of Just and Unjust Wars gives some consideration to the moral tragedy that may be involved when overriding military necessity calls upon the leaders of a nation to attack civilians, but the most that he is willing to concede is that we do not try to throw a veil over this fact. It does not occur to him that this tragedy may in fact affect more than the political and military leaders faced with making the decision to violate the war convention. But as Kant points out, such action may well make those who carry it out unfit to be citizens, and thus by extension, the state that requires them to do so is unfit to be a state. The implication which Kant draws is a far more serious matter than that given, for example, by Telford Taylor.
Unless troops are trained and required to draw the distinction between military and nonmilitary killing, and to retain such respect for the value of life that unnecessary death and destruction will continue to repel them, they may lose the sense for that distinction for the rest of their lives. The consequence would be that many returning soldiers would be potential murders.(59)
The consequences of a failure to abide by the rules of war, and the resulting damage to the morality of one's own soldiers, may prove to be inconvenient in that they then might pose a problem for public order and safety. However, this is not the basis of Kant's objection to such practices. The moral damage that soldiers may sustain is not so much to be regretted for the consequences it entails, as it is to be condemned as a violation of what it means to be a state.(60) This means that the tragedy may in fact be more total than Walzer allows: if the choice is between being destroyed and destroying oneself in warding off that destruction, which is to be preferred? For Walzer such self-violation may be the price of survival.
Others, however, have held that there are times when it is better to
die than to commit such evil. Grady Scott Davis bases such a strenuous
requirement on an Aristotelian notion of individual character.
For the just war tradition and for those in general who prize character and virtue over mere physical continuity, the wicked and the base constitute an absolute barrier to action. Better to surrender than win unfairly. Surrender at least preserves justice in myself and my compatriots, not to mention the possibility of working from within to restore what has been lost. But if preserving our integrity requires fighting on, better to die in the cause of justice and fair play than win like an Athenian.(61)
John C. Ford places ultimate value on "absolute moral imperatives."
The threat of atheistic communism presents us with terrifying problems. But I think these problems are entirely oversimplified when reduced to the stark dilemma: either wipe them out or be wiped out yourselves. But if that were the dilemma, I would consider that we had arrived at the point where absolute moral imperatives were at stake, and the followers of Christ should abandon themselves totally to divine Providence rather than forsake these imperatives.(62)
Both of these positions place the force of the injunction in something external to the situation in which it becomes ultimate, either individual character or divine imperative. That is to say, the supremacy of these bases is one of value, and the problem of war is a conflict of these values with what is necessary for victory.(63) Davis and Ford hold that we should value virtue and absolute moral imperatives over physical survival, but it is also quite possible to say that in such cases that these values are proven unrealistic precisely by their ineffectiveness. Thus one may opt for survival as a basic value, and chuck whatever "idealistic" values that come into conflict with the basic one.
Kant's injunction, on the other hand, mentions nothing of value. In fact, the allowance of any means to defend a state implies both the recognition of the value of political community, and of its members, but these are not trump values which are to be sacrificed or not. The very possibility is not one that is open, for if the state violates its own existence in its defense, there is in fact nothing left to be defended.
In trying to make some sense of this welter of theories of the source of the rule of non-combatant immunity, we shall have to make some general characterizations of them. The most common distinction is between consequentialist and absolutist, or deontological, justifications for ethical restrictions on warfare. The positions that aim at the amelioration of war would be classed as consequentialist. Of our theories, then, those that seek to "mitigate suffering" obviously fall into this group, as well as that one which assumes there is no good consequence to come of attacks on noncombatants, "military ineffectiveness". Less obviously, the "protection of the prize" and "the interests of Peace" and "moral damage" also are consequentialist, at least insofar as they are taken to imply that violations of noncombatant immunity produce undesireable consequences.(64)
Those that set limits that are to be observed regardless of consequences, by default, would be classifed as absolutist. The position that would base noncombatant immunity on human rights would fall under this classification, as would "Christian Charity", and a doctrine of "innocence". A certain interpretation of "The interests of peace" and "moral damage" would also qualify them to be taken as absolutist theories of non-combatant immunity, that is, if they held such action to be wrong independently of its consequences.
This leaves us with the doctrine of chivalry. As we have seen much of the discussion of chivalry in relation to modern law and practice of war has been an attempt to relegate it to a distant and somewhat idealistic past. But the antiquity of the thought is of itself no count against it, for indeed some of the other theories are even older. Taking chivalry seriously as a theory that establishes noncombatant immunity, we must ask where we place it in terms of our two categories.
The answer is not immediately forthcoming. To a great extent, this is because the ideal of chivalry is closely tied not so much to a particular historical practice of war as to a certain ideal. Noncombatant immunity, as Lackey so clearly shows, makes no sense outside of that concept of what war is about. In other words, the ethical ideals of chivalry are dependent on a particular conception of war itself. Absolutely, the ethical ideal of chivalry makes no sense; and its consequences only make sense within the context of chivalry's concept of war. Thus the ethical system of chivalry must fall outside of our first distinction.
Rather than treating as an anachronism, however, we might continue to take chivalric non-combatancy seriously, and use its distinguishing feature as the basis for new categories. We might, then, sort out theories of non-combatant immunity on the basis of the concept of war upon which they depend. And the first cut must come along the lines of those which do so depend and those that do not. Absolutist and consequentalist theories find specific application in war, but there is no particular concept of war that is entailed by this application. We should respect the rights of persons or seek to maximize the good regardless of whether a war is just or unjust, aggressive, defensive, punitive or recreational. As general principles, these injunctions transcend any particular situation to which they apply. The rest of our theories, however, do imply some conception of what war is.
As opposed to those positions whose ethical requirements are external to the particular activities in which they find application, the rest are tied to a particular conception of that activity, or at least what it is not. The interpretation of the granting of noncombatant immunity in chivalry as a part of knighlty class interest implies that war is both a competition between groups of the military class for wealth and power, as well as the defense of class interests against other classes. The admonition to good faith assumes that, what ever else it is, war is a relation between peoples, and thus cannot be destructive of that relation, whether internally or externally. Holding that attacks on noncombatants is militarily ineffectual, if it amounts to more than an injunction to minimize destruction, implies that whatever war is, it is not attacks on noncombatants. The notion of war that underlies the expression of Christian charity and the doctrine of innocence is one of the prevention or redress of wrongs, or in essence a restraining or punitive function. And lastly, for chivalry war is a contest of honor.
In order to ejudicate these claims to a foundation for the rule of noncombatant immunity, then, it is necessary to come to a determination of what war is. This we will turn to next.
1. Michael Bothe, Karl Josef Partsch, Waldemar A. Solf, with the collaboration of Martin Eaton. New Rules for Victims of Armed Conflicts: commentary on the two 1977 protocols additional to the Geneva Conventions of 1949 (The Hague, Boston: Martinus Nijhoff Publishers, 1982), p. 280.
2. Grotius, De Jure Belli ac Pacis: Libri Tres, Trans. Francis W. Kelsey, The Classics of International Law (Oxford: At the Claredon Press, 1925), 3.11.8.
3. Quoted by Holmes, On War and Morality, p. 164, from The Challenge of Peace: God's Promise and Our Response, pp. 28-34.
4. Judith N. Shklar, Ordinary Vices, (Cambridge, Mass. and London: Belknap Press of Harvard University, 1984), p. 24.
5. Ibid., p. 43.
6. Ibid., p. 24
7. Ibid., p. 24-5, emphasis added.
8. Ibid, p. 9.
9. As Bentham writes in Principles of Morals and Legislation, "When a man attempts to combat the principle of utility, it is with reasons drawn, without his being aware of it, from the very principle itself." [Chapter 1. XII, p. 4]
10. Holmes, Robert L., On War and Morality, p. 96.
11. Walzer, Just and Unjust Wars, p. 129. Quoting from Sidgwick, Elements of Politics ( London, 1891), p. 254.
12. Just and Unjust Wars, p. 133.
13. Anthony E. Hartle, "Humanitarianism and the Laws of War", Philosophy, 61(1986): 110-11
15. Not to say that the project is not still attempted: the Star Wars Defensive Initiative would seem to be a case in point.
16. Douglas P. Lackey, The Ethics of War and Peace (Englewood Cliffs, N.J.: Prentice-Hall, 1989), p. 62.
17. W.L.LaCroix War and International Ethics: Tradition and Today (Lanham, MD: University Press of America, 1988), p. 129-30. Reference to: Johnson, Just War Tradition, p. 300n.
18. Johnson (Just War Tradition, p. 301)
points out this ambiguity in Halleck;
Justice, too, protects prisoners of war, as does a mutual obligation based in the usual lack of "great disparity in the numbers of prisoners taken by the opposing belligerents." [Halleck, Elements of International Law and Laws of War, p. 191, 195] This last argument makes Halleck's position on treatment of prisoners of war somewhat unclear. On the one hand he would assimilate them to noncombatants, reasoning from justice; yet on the other hand it is reciprocity-- mutual obligation-- that protects prisoners, and Halleck suggests that where one side takes many more prisoners than the other, that obligation is diminished.
19. Cf. Robert Phillips, War and Justice (Norman, Oklahoma: University of Oklahoma Press, 1984) p. 58:
It is combatants who are the objects of attack in war, and, therefore, moral distinctions will center upon that notion rather than innocence. This is necessarily the case, since war is a contest of strength, an arbitratement of arms carried out under the direction of moral and political aims. [emphasis added]
20. Holmes, On War and Morality, p. 103.
21. Glover, Michael, The Velvet Glove: The Decline and Fall of Moderation in War ( London, etc.: Hodder and Stoughton, 1982), p. 136.
22. Phillips, War and Justice, p. 54; Frits Kalshoven, Belligerent Reprisals (Letden: A.W.Sijthoff, 1971), p. 337.
23. See Paskins and Dockrill, The Ethics of War (Minneapolis: Univ. of Minnesota Press, 1979), pp. 43-48; Gerry Wallace, "Area Bombing, Terrorism and the Death of Innocents" in the Journal of Applied Philosophy, 6(1989): 3-15; Walzer, Just and Unjust Wars, pp. 255-263.
24. Michael Howard, "Temperamenti Belli: Can War
be Controlled?" in Restraints on War, Howard ed. (Oxford: Oxford
University Press, 1979), p. 4:
The military principle of 'economy of force' may sometimes conveniently coincide with the dictates of transcendent moral values, but there is little historical justification for assuming that this will always be the case.
25. O'Brien "Just War Theory" in Sterba, James, ed. The Ethics of War and Nuclear Deterrence (Belmont: Wadsworth Publishing Co., 1985), p. 40 [emphasis added]:
However, it is important to recognize that the principle of discrimination did not find its historical origins solely or even primarily in the fundamental argument summarized above [justified response to aggression]. As a matter of fact, the principle seems to have owed at least as much to codes of chivalry and to the subsequent development of positive customary laws of war. These chivalric codes and customary practices were grounded in the material characteristics of warfare during the medieval and Renaissance periods. During much of the that time, the key to the conduct of war was combat between mounted knights and supporting infantry. Generally speaking, there was no military utility in attacking anyone other than the enemy knights and their armed retainers. Attacks on unarmed civilians, particularly women and children, would have been considered unchivalric, contrary to the customary law of war, and militarily gratuitous.
26. Cady, From Warism to Pacifism, p. 29, referring to Johnson, Can Modern War Be Just?, p. 5.
27. Which is not to say that the interpretation is incorrect, but only that explanations in terms of class interests, if these are not consciously held and expressed, are subject to a greater burden of proof.
28. Johnson, Just War Tradition, p. 225.
29. Johnson, p. 188:
So far as the medieval concept of just warfare embodied the actual usages of war, it reflected a certain style of war and, in particular, the idea that war was an activity for the knightly class, to be regulated by the internalized moral code of that class. The changed nature of war in the modern era removed the social restriction that had made warfare a class activity and at the same time ensured that military efforts to restrain war would no longer be formulated in terms of a moral code.
30. Weber: Selections in Translation. ed.W. G. Runciman, trans E. Matthews (Cambridge: Cambridge University Press, 1978), p. 39 [Wirtschaft und Gesellschaft 17]:
The term 'state' will be used to refer to an institutional enterprise of a political character, when and insofar as its executive staff successfully claims a monopoly of the legitimate use of physical force in order to impose its regulations.
31. Ibid. p. 199-200.
32. Johnson, Just War Tradition, p. 212:
The same pattern can be observed here as between the canonical and chivalric definitions of noncombatant immunity in the Middle Ages: on the one hand, protection was due by right, on the other, protection was conveyed as a gift. And that gift could be taken away, as in the case of medieval warfare if to do so better served the higher interests of the knights.
33. Ibid. The analysis would seem more appropriate to the feudal society of Japan, where the importance of the warrior class did not allow of the granting of immunity of attack to the other members of the society.
34. Johnson, Just and Unjust Wars, p. 16.
36. Lackey, The Ethics of War and Peace, p. 65-66.
37. The argument is hardly original, nor for that
matter dependent upon modern western conceptions of war. We find it put
forth in 637 B.C. in China during the Warring States period, as related
in the Tso Chuen:
'An army of Ts'oo invaded Sung, in order to relieve Ch'ing. The duke of Sung being minded to fight, his minister of war remonstrated strongly with him, saying, "Heaven has long abandoned the house of Shang [Sung was the conservator of the Shang sacrifices]. Your Grace may wish to raise it again, but such opposition to Heaven will be unpardonable." The duke, however, would not listen to advice, and in winter, in the 11th month, on Ke-sze, the 1st day of the moon, he fought with the army of Ts'oo near Hung.
The men of Sung were all drawn up for battle, before those of Ts'oo had all crossed the river; and the minister of War said to the duke, "They are many, we are few. Pray let us attack them, before they have all crossed over." The duke refused; and again, when the minister asked leave to attack them after they had crossed, but when they were not yet drawn up. He refused, waiting until they were properly marshalled before he commenced the attack.
The army of Sung was shamefully defeated; one of the duke's thighs was hurt; and the warders of the gates [keepers of the palace gates, who had followed the duke to the field] were all slain. The people of the State all blamed the duke, but he said, "The superior man does not inflict a second wound, and does not take prisoner any one of gray hairs. When the ancients had their armies in the field, they would not attack an enemy when he was in a defile; and though I am but the poor representative of a fallen dynasty, I would not sound my drums to attack an unformed host." Tsze-yu [the minister of war] said, 'Your Grace does not know the rules of fighting:-- Given a strong enemy, in a defile or with his troops not drawn up, it is Heaven assisting us. Is it not proper for us to advance upon him so impeded with our drums beating, even then afraid we may not get the victory?
Even the old and withered among them are to be captured by us, if we can only take them;-- what have we to do with their being grey-haired? We call into clear display the principle of shame in teaching men to fight, our object being that they should slay the enemy. If our antagonist be not wounded mortally, why should be not repeat the blow? If we grudge a second blow, it would be better not to wound him at all. If we would spare the grey-haired, we had better submit at once to the enemy. In an army, what are used are sharp weapons, while the instruments of brass and the drums are to rouse men's spirits. The sharp weapons may be used against foes entangled in a defile; when their noise is the loudest and the men's spirits are all afire, the drums may be borne against the enemy in disorder."
(James Legge, The Chinese Classics, Vol. 5, p. 183)
38. Walzer, Just and Unjust Wars, p.37:
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."
40. Walzer, p. 137
41. Geneva Convention, article 3; Protocol I, article 75; Declaration of Human Rights, especially articles 1, 3, 5, 6, and 12; Hague Convention, articles 46, 47
42. Johnson, Just War Tradition, p138-9
43. Johnson, Just War Tradition, p. 127-8:
De Treuga et Pace lists eight classes of persons who should have full security against the ravages of war: clerics, monks, friars, other religious, pilgrims, travelers, merchants, and peasants cultivating the soil. The animals and goods of such persons were also protected, as well as the peasants' lands. These are all types of persons who, because of their social function, have nothing to do with warmaking; thus they are not to have war made against them. Though this canon does not provide a comprehensive list of persons who by this functional definition are noncombatants, and though it is far from an attempt to justify the idea of noncombatant immunity generally, it was both more relevant to contemporaneous warfare and more susceptible of further development than the Truce of God.
44. Michael Bothe, et al. New Rules for Victims of Armed Conflicts, pp. 317-18.
45. The American Journal of International Law, 39(1945): 696-97
46. Kant, Immanuel, Perpetual Peace and Other Essays, trans. Ted Humphreys (Indianapolis, Indiana: Hackett Publishing Co., 1983), pp. 109-10
47. See Bothe, et al. New Rules for Victims of
Armed Conflicts, p. 315, 2.7.6:
"Impressive historical evidence has been collected to show that when actually carried out, (usually without recourse to the preconditions required by customary law), reprisals have not been corrective. They have led to escalating spirals of violence, unnecessary suffering by the innocent and enormous waste and dispersal of resources that could have been used more effectively to achieve military success."
48. Grotius, III.25.1
50. Paul Ramsey, The Just War: Force and Political
Responsibility (New York: Charles Scribner's Sons, 1968), p. 150. Maybe
the difference is only rhetorical, but Ramsey does seem to go against what
Augustine wrote in The City of God, bk. 1:2, p. 26:
However, there are some exceptions made by the divine authority to its own law, that men may not be put to death. These exceptions are of two kinds, being justified either by a general law, or by a special commission granted for a time to some individual.
51. Ramsey, The Just War, p. 151
52. Franciscus de Victoria De Indus et de Iure Belli Relectiones, Ernest Nys ed., The Classics of International Law, James Brown Scott, ed., (Washington D.C.: Carnegie Institution of Washington, 1917), p. 178. The author's name is sometimes also spelled "Vitoria".
53. Holmes, On War and Morality, p. 133
54. Ibid., p. 135
55. Cady, From Warism to Pacifism, p. 64-5
56. Westra, Laura. "On War and Innocence." Dialogue, 25(1986): 740.
58. Immanuel Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as The Science of Right, trans. W Hastie (Edinburgh: T.&T. Clark, 1887; reprinted Clifton, New Jersey: Augustus M. Kelley Publishers,1974), p. 220. Again, I place attacks on noncombatants among the "dishonorable strategems."
59. Telford Taylor, Nuremberg and Vietnam: An American Tragedy (Chicago: Quadrangle Books, 1970), as reprinted in Wakin, War, Morality, and the Military Profession (Boulder, Colorado: Westview Press, 1979), p. 429.
60. It may seem that the damage inflicted on soldiers in this way is no less heinous than that resulting from the violence of war: their death. But requiring death does not make the soldier unfit to be a citizen, at least not in the same way as forcing him to become a criminal does. No doubt reasoning of this sort lies behind the judgment at Nuremberg that superior orders do not excuse war crimes, since the necessary corollary would be that states cannot legitimately give such orders.
61. Davis, Warcraft and the Fragility of Virtue: an essay in Aristotelian Ethics (Moscow Idaho: University of Idaho Press, 1992), p. 176. Davis's "winning like an Athenian" refers to the so-called "Melian Dialogue" of Thuycidides' Peloponnesian War.
62. John C. Ford, S.J. "The Hydrogen Bombing of Cities" in Morality and Modern Warfare, p. 103.
63. Cf. J. Glenn Gray, The Warriors: Reflections
on Men in Battle ( New York: Harper & Row,1959), p. 186:
Normally, the awakening of guilt is much more gradual, and the achievement of clarity about duty to one's country and duty to oneself a matter of anguished doubt, sometimes lasting for months or years. But the primary realization is the same in all cases: there is a line that a man dare not cross, deeds he dare not commit, regardless of orders and the hopelessness of the situation, for such deeds would destroy something in him that he values more than life itself. He may decide that his commander, his army, or his people may justly demand his life but may not command him to do what is in violation of his deepest self.
64. The split here would be between those who hold that such violations always produce negative results, and those who may maintain only that this is usually the case. The consequentialist/ utilitarian position is most often taken to rule out such a priori judgments, but it is none the less true that in these cases it is an a priori judgment of consequences that is taken to establish the rule. The epistemological difficulties with confirming the position do not change its nature.