Contingent Pacifism: Revisiting Just War Theory 1107547660, 9781107547667

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Contingent Pacifism

In this, the first major philosophical study of contingent pacifism, Larry May offers a new account of pacifism from within the Just War tradition. Written in a non-technical style, the book features real-life examples from contemporary wars and applies a variety of approaches ranging from traditional pacifism and human rights to international law and conscientious objection. May considers a variety of thinkers and theories, including Hugo Grotius, Kant, Socrates, Seneca on restraint, Tertullian on moral purity, Erasmus’s arguments against just war, and Hobbes’s conception of public conscience. The guiding idea is that the possibility of a just war is conceded, but not at the current time or in the foreseeable future due to the nature of contemporary armed conflict and geopolitics – wars in the past are also unlikely to have been just wars. This volume will interest scholars and upper-level students of political philosophy, philosophy of law, and war studies. larry may is W. Alton Jones Professor of Philosophy, Professor of Law, and Professor of Political Science at Vanderbilt University. He is the author or editor of thirty books, including After War Ends: A Philosophical Perspective (Cambridge, 2012), Global Justice and Due Process (Cambridge, 2011), Genocide: A Normative Account (Cambridge, 2010), Aggression and Crimes Against Peace (Cambridge, 2008), War Crimes and Just War (Cambridge, 2007), and Crimes Against Humanity (Cambridge, 2005).

Contingent Pacifism Revisiting Just War Theory Larry May Vanderbilt University

University Printing House, Cambridge CB2 8BS, United Kingdom Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107121867  C Larry May 2015

This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2015 A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data May, Larry, author. Contingent pacifism : revisiting just war theory / Larry May, Vanderbilt University. pages cm Includes bibliographical references and index. 1. Just war doctrine. 2. War – Moral and ethical aspects. 3. Pacifism. I. Title. KZ6396.M39 2015 2015012531 172 .42 – dc23 ISBN 978-1-107-121-867 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Contents

Acknowledgments 1 Introduction

page vii 1

I Varieties of Pacifism 2 Traditional pacifism

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3 The idea of contingent pacifism

43

II Human Rights and the Just War 4 Proportionality, immunity, and human rights

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5 Necessity and the rights of soldiers

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6 Innocence and complicity

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III International Law and the Practice of Peace 7 The United Nations Charter and outlawing war

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8 Human rights law and the right to life during war

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9 International law and post-war justice

176

IV Conscience and Conscientious Refusal 10

Conscience, integrity, and morality

197

11

Public conscience and civil disobedience

214

12

Selective conscientious refusal

233

v

vi

Contents

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Final thoughts and conclusions

250

Bibliography Index

259 269

Acknowledgments

My grandfather served in World War I – coming home from the trenches hating war and everything related to it. My father served in World War II – coming home with a different, somewhat more positive, reaction, but largely because he managed not to be sent into combat. In 1971, I went before my draft board arguing that I should be exempted from military service in the Vietnam War on the grounds that I was conscientiously opposed to the Vietnam War. Because I was raised Catholic, and because I was only opposed to some wars, I declared myself to be a “selective” conscientious objector. Then after making my case, and to my surprise, the draft board granted my request. But to my even greater surprise the draft board members asked me if I was conscientiously able to serve in the medical corps in Vietnam, rather than to stay stateside and work in a hospital, in lieu of serving in the military. I agreed to serve in the medical corps but for unrelated reasons (I had a very bad case of acne) I was never asked to serve overseas. These experiences have colored my view of serving in wars for my entire adult life. I have nothing but admiration for those who feel that it is their patriotic duty to serve in war or in peace, both those who carry weapons and those who do not. In this book, I discuss selective conscientious objection, and the form of pacifism that would support such a position as I tried to articulate before my draft board. In general, I try to provide a coherent account of this form of pacifism and what are the best arguments that I can construct in its favor. I have written previously about conscience and about the Just War tradition, and I have begun to explore contingent pacifism in some of my writings over the years. Certain chapters appeared earlier in other forms. A version of parts of Chapter 5 appeared as “Contingent Pacifism and the Moral Risks of Participating in War,” Public Affairs Quarterly, 25/2 (April 2011), 95–111. Parts of Chapters 7 and 8 appeared as “Human Rights, the United Nations Charter, and Contingent Pacifism,” Florida State International Law Review (Winter 2014). Part of Chapter 10 appeared as “On Conscience,” American Philosophical Quarterly, 20/1 (January 1983), 57–67. And an earlier version of Chapter 12 appeared as “Contingent Pacifism and Selective Refusal,” Journal of Social vii

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Philosophy, 43/1 (Spring 2012), 1–18. All of these pieces have been extensively revised and reorganized for the book. In addition, some of the material for Chapter 5 was part of my essay “Humanity, Necessity, and the Rights of Soldiers,” which won the American Philosophical Association’s Frank Chapman Sharp prize for best unpublished work on the philosophy of war and peace from 2012–14. I first presented some of these ideas in Oxford at the Institute for Ethics, Law and Armed Conflict which has been a wonderful place for me to get feedback from the leading scholars there who work on Just War issues. I am similarly grateful for excellent feedback I received in seminars at the Australian National University where my ideas became more detailed. And I was fortunate to be able to get excellent comments on relatively late versions of several of these chapters as the Ida Beam Visiting Scholar at the University of Iowa. Several theorists read earlier drafts of the book: Saba Bazargan, Mathias Thaler, Cian O’Driscoll, Andrew Forcehimes, and Tony Coady, as well as an anonymous reviewer for Cambridge. I am very grateful for their many suggestions and criticisms, without which the book would be much poorer. I have tried out many of these ideas at conferences here in the US and am especially grateful for feedback received at Middlebury College, the University of California–Berkeley, Binghamton University, the University of California– San Diego, and at Vanderbilt University. Also in Europe I thank audiences where I presented versions of some of these chapters in The Hague, Manchester, and Geneva. I am grateful to all of these audiences for their patience and support. In addition, I would not have been able to complete this project without the financial support that I have received from Vanderbilt University and from the Centre for Applied Philosophy and Public Ethics in Canberra. I also wish to thank specifically the following scholars who have had the most influence on my writing on the topics of this book: Brooke Ackerly, Christian Barry, Saba Bazargan, Gabriella Blum, Kimberley Brownlee, Tony Coady, Jovana Davidovic, Cecile Fabre, Andrew Fiala, Bob Goodin, Seth Lazar, David Luban, Jeff McMahan, Michael Newton, Cian O’Driscoll, Mark Osiel, David Rodin, Cheyney Ryan, Henry Shue, Robert Talisse, Mathias Thaler, Michael Walzer, and Kit Wellman. And I am grateful to my students who have discussed these issues with me, where I’m sure I learned more from them than they learned from me. I want especially to thank Geoff Adelsberg, Sasha Aleksayeva, Jeff Brown, Emily Crookston, Marissa Curren, Jill Delston, Elizabeth Edenberg, Andrew Forcehimes, Shannon Fyfe, Carmela Hill-Burke, Tom Holaday, Zach Hoskins, Seth Maine, Emily McGill, Paul Morrow, Eric Ritter, Eric Rovie, and Steve Viner. I am also grateful for research assistance from Paul Morrow, Emily McGill, Shannon Fyfe, and Eric Ritter. I also thank Elizabeth Barone for providing an excellent index to the book. It has been a pleasure to work with such bright and motivated students.

Acknowledgments

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Most significantly, I am grateful well beyond words for the countless discussions, often during our morning walks, which I have had with Marilyn Friedman, whose advice and especially her criticisms made my work better than I could possibly have made it on my own. Philosophy, for me, has never been a solitary enterprise. Thinking, especially about difficult contemporary social issues, needs dialogue, and I am profoundly grateful for all those who have been willing to engage with me in conversation over the many years that I have worked on this book. But Marilyn deserves special thanks for prodding me to explain why pacifism appeals to me, and for forcing me to see its problems so well. Last but not least I thank my draft board for taking me seriously as a nineteenyear-old struggling with my conscience long before I was able to explain myself in a coherent fashion. I dedicate this book to those young men and women who struggle with their own consciences when they are asked to serve in their nation’s wars. I hope the adults who hold these youngsters’ lives in their hands take them as seriously as I was taken by my draft board in 1971. Hopefully this book will encourage others to speak up and engage their fellow citizens in a discussion of why and whether war and armed conflict should still be so prevalent today. But those who choose to serve in foreign wars should not be blamed but rather thanked for their service, as is true for those who serve their nations in other ways. The form of pacifism presented in this book is meant to be soldier-friendly.

1

Introduction

This is a study of a relatively new version of pacifism, called contingent pacifism by some of its adherents. The guiding idea is that the possibility of a just war is conceded, but not at the current time or into the foreseeable future due to the contemporary nature of armed conflict and geopolitics.1 In addition, when one takes account of the full range of justice considerations (in the initiation,2 conduct,3 and ending4 of a war), even those wars in the past that seemed to be just wars were unlikely to have passed this tripartite test of a just war. While it is sometimes true that a given war is initiated for a just cause, for instance for self-defense, the question of the morality of war does not end here. The war has to be fought justly, as well as ended justly. It is the combination of these three justice-based considerations that makes a war just, not merely that it is initiated for just cause. And it is highly unlikely that wars in the past passed this test. Contingent pacifism is only relatively new. There are three significant instances of the espousal of contingent pacifism to which I wish to call attention. First, as I will argue later, Erasmus seems to have held this view in the sixteenth century. Indeed, Erasmus is one of the best examples of a pacifist who employed Just War criteria to show that most if not all wars were unjust.5 Erasmus will be discussed at length in the next chapter. Second, consider Cardinal Alfredo Ottaviani’s 1949 comments in “The Future of Offensive War” which are also drawn in Just War terms: All the foregoing reasoning [of traditional Just War thinking] is cogent enough if we confine ourselves to a purely theoretical treatment of warfare. But in practice and in relation to present conditions the principles enunciated do not seem to hold. They were 1 2 3 4 5

See John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1973), p. 382. See Larry May, Aggression and Crimes against Peace (Cambridge University Press, 2008). See Larry May, War Crimes and Just War (Cambridge University Press, 2007). See Larry May, After War Ends: A Philosophical Perspective (Cambridge University Press, 2012). See James T. Johnson, “Two Kinds of Pacifism: Opposition to the Political Use of Force in the Renaissance–Reformation Period,” Journal of Religious Ethics, 12 (Spring 1984), 39–60. For a contrasting view, see Jose Fernandez-Sanamaria, “Erasmus on the Just War,” Journal of the History of Ideas, 34 (April–June 1973), 209–26, arguing that Erasmus was a conditional Just War theorist, not a pacifist.

1

2

Introduction

meant, we should remember, to cover warfare of a special kind, that between mercenary armies, and not our mammoth warfare which sometimes entails the total downfall of the nations at grips with each other; the principles, in fact, cannot be applied in the life of modern nations without doing serious damage to the particular peoples involved, and (leaving aside a question of a defensive war begun, under certain conditions, for the protection of the state from actual and unjust aggression) no state is justified any longer in resorting to warfare when some right has not been given its full due.6

Even for this conservative Catholic cleric employing Just War criteria, war is unjust now and this has been true for quite a while as well as into the future. Third, consider the case of Japan after its defeat during World War II. Until very recently, Japan has referred to itself as a pacifist nation; and Japan’s constitution is often said to be a “pacifist constitution.”7 Article 9 of the Japanese Constitution says that the Japanese people “forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes.” Yet, Japan has recognized that war for self-defense can be justified. In all three cases, war is seen as justifiable in principle but not at the moment and it is rare indeed that war is now seen as having been justified in the past. I

The point of this book

This book’s main purpose is simply to get people to take the position of contingent pacifism seriously. The point of the book is not to show that contingent pacifism is right and those who support the idea of a just war are wrong; or that contingent pacifism is right and traditional pacifism is wrong. This is not a “debate” book, as is so common today, where someone comes away thinking that I have either won or lost the argument. Rather, the point of the book is to argue that there are many commonalities between contingent pacifism and conceptions of the just war. The hope is that the gap can be closed between these two normally opposed positions on the politics, morality, and legality of war. The book will succeed in my view if at the end the reader sees contingent pacifism in a positive light, not if the reader is converted to contingent pacifism. Indeed, in my view contingent pacifism is not the kind of thing one should be converted to. Rather it is a position taken after serious rational consideration of a great many factors. In my own case, as will become clear, I continue to recognize the possibility of a just war – contingent pacifism is not opposed to the recognition of such a possibility. Pacifism has been with us for as long as there have been wars. And there is a good reason for this: war involves the intentional killing of lots of men and 6 7

Alfredo Ottaviani, “The Future of Offensive War,” translation published in Blackfriars, 30/354 (September 1949), 415–20. See the Editorial, “Japan and the Limits of Military Power,” New York Times, Thursday, July 3, 2014, p. A20.

Introduction

3

women. Yet the intentional taking of life is condemned in every society. If we did not have the institution of war, there would probably be less intentional killing in the world. War is an institution that involves the intentional killing of the members of society who are at their most promising, the young men and young women who are asked to serve and die in those wars. So, it should be no surprise that every time there is a war, or even the talk of war, some members of society have arisen to challenge those wars and to argue that there is something wrong – morally wrong – with going to war. Traditional pacifists have a reputation for being in a certain sense moral exemplars, almost always acting on principle and courageously going against the nationalistic fervor of the time. Pacifists like Mahatma Gandhi and Martin Luther King are looked up to by most people from nearly every society. They stand out from the mass of society because they do not feel that they have to act as everyone else does. Indeed, it is the single-minded pursuit of what their consciences tell them is the right thing to do that has enhanced the moral reputation of pacifists over the centuries. But pacifists also have the reputation of being unworldly, naïve, and even dangerous for a society that must vigilantly protect its borders to prevent the aggression of its neighbors. For many “realists,” pacifists are simply to be pitied at best. Pacifists are people who have let their principles blind them so they cannot recognize the simple fact that war has always been with us. And they are pernicious because they do not see that those who do not employ war will be enslaved by others who are not afraid to use war to get what they want. It is for this reason that some today are exploring a non-traditional version of pacifism, called contingent pacifism. As I use the term, “contingent pacifism” admits the possibility of a just war but sees that wars in the past were unlikely to be just wars, and sees no wars at the moment or into the foreseeable future to be just wars. Many believe that there have been just causes to go to war, such as to stop Nazi aggression and genocide in World War II. But if one considers such World War II tactics as fire-bombing and carpet bombing, as well as dropping the atomic bomb on a population center, even World War II was not clearly a just war. Here while there might have been a clear just cause, this condition is only one of the conditions of just initiation of war, and does not tell us anything about whether the conditions for justly conducting or ending war are also satisfied. For there to be a just war today, such a war would have to cause fewer violations of human rights than protections of rights. And rights need to be considered at each of the three levels of analysis of the justice of waging war. It is my judgment that it is unlikely that war can be justified, especially if the human rights of all of the soldiers involved are taken seriously. The lives and rights of civilians have been the paramount concern in the Just War tradition as well as in contemporary international law. I am urging that we explore the

4

Introduction

justifiability of war from the perspective that the lives and rights of soldiers are also given major concern, in a somewhat different way than the Just War tradition has understood such things as proportionality and necessity. By taking all of the lives and rights of soldiers seriously, contingent pacifism is presented as a soldier-friendly position in the debates about the morality and legality of war. In the next section of this introductory chapter I will discuss some of the reasons in favor of introducing contingent pacifism into the debates about the morality and legality of war. In the third section I clarify some methodological issues concerning my approach. In the fourth section I then explain what contingent pacifism is “contingent” on, and what the appeal is of a “contingent” pacifism. In the fifth section, I address some of the issues in contemporary moral and legal theory that seemingly support contingent pacifism. In the final section, I then say something brief about the role that conscience should play in the debates about the morality of war. II

Roots of contingent pacifism

The contemporary doctrine of contingent pacifism admits that in principle some wars can be just, but it is highly unlikely that any actual wars have been or will be just. There are two groups of reasons in behalf of contingent pacifism as I understand it. First, for a war to be just it must satisfy conditions of a just initiation, conduct, and ending of war. If a war is initiated without having a clearly just exit option, or a clear way to wage the war in a just manner, then war cannot even be initiated justly. Second, for war to be just there have to be conditions that are ripe for a just war in the sense primarily that the human rights of all of those who are concerned in the war are given their due by the States or other entities that are waging war. Contingent pacifists are unlike traditional pacifists in that contingent pacifists do not have absolute principled reasons to oppose violence, or even to oppose all wars. Contingent pacifism calls for a case-by-case assessment of whether given wars involve such serious moral risks that they make participation in those wars morally problematic. As with other theorists who have argued for this position, sometimes called “just war pacifism” or “practical pacifism,”8 I look to the Just War tradition for the initial criteria by which war is to be judged morally problematic, although I differ in how I understand some of the key conditions such as proportionality and necessity. And I look to the emerging normative understanding of human rights law as applied to war to argue for the legally problematic nature of war. The Just War tradition began with the writings of Cicero and Augustine, during the Roman era. Cicero addresses the justice in initiating war, the justice of 8

For a view that reaches very similar conclusions to my own but sometimes from very different arguments, I recommend Andrew Fiala, Practical Pacifism (New York: Algora, 2004). Fiala comes to these debates from the American Pragmatist tradition, whereas I do not.

Introduction

5

the conduct of war, and justice at the end of war. Concerning initiating war he argues that war must only be started as a last resort;9 it must be conducted for a just aim; and there must be a formal declaration of war.10 Concerning conduct during war, he says that only soldiers are permitted to fight during war;11 and that cruelty should not be employed. Unlike many early Just War theorists, Cicero also considers justice after war ends, specifically that at the end of war those who were not cruel should be spared,12 and that those who have laid down their arms must also be spared.13 Unlike Cicero, Augustine was initially influenced quite heavily by other Church leaders and scholars who were at his time largely pacifist. Augustine thought that only very few wars could be justified, employing roughly the same criteria that Cicero had proposed. Augustine argued: “the wise man, they say, will wage just wars. Surely if he remembers that he is a human being, he will rather lament the fact that he is faced with the necessity of waging just wars.”14 Most significantly, Augustine was suspicious of what are today the paradigmatic just wars among Just War theorists, namely wars of self-defense. And Augustine was convinced that very few wars could be justified at his time as well. Augustine said: “Indeed, even when men choose war, their only wish is for victory; which shows that their desire in fighting is for peace with glory.”15 In addition, Augustine proposed that there are “laws of war.”16 And this had strong influence on the later thinkers in what came to be known as the Just War tradition. As the Just War tradition developed in significant ways through the Middle Ages and the early modern period, the core of the doctrine remained the same but many of the details changed, some significantly. Writing in the sixteenth century, Francisco Vitoria provided what he called the “canons or rules of warfare.” 1. “Assuming that a prince has authority to make war, he should first of all not go seeking occasions and causes of war, but should if possible live in peace with all men.” 2. “When war for a just cause has broken out, it must not be waged so as to ruin the people against whom it is directed, but only so as to obtain one’s rights.” 3. “When victory has been won and the war is over: the victory should be utilized with moderation and Christian humility.”17 9 10 14 15 17

Cicero, On Duties, trans. Walter Miller, Loeb Classical Library 30 (Cambridge, MA: Harvard University Press, 1913), Book I, para. 34. 11 Ibid., para. 37. 12 Ibid., para. 35. 13 Ibid. Ibid., para. 36. Augustine, City of God, Book 19, sect. 6, repr. in Larry May, Eric Rovie, and Steve Viner, The Morality of War (Upper Saddle River, NJ: Prentice-Hall, 2007), pp. 16–20 (16). 16 Ibid., p. 19. Ibid., pp. 16–17. Francisco Vitoria, De Indis et de Ivre Belli Relectiones (On the Law of War), trans. John Pawley Bate (Carnegie Institute of Washington, 1917), p. 187.

6

Introduction

Here Vitoria clearly enunciated all three of the sets of conditions that govern a just war. Just War theorists have not often seen how the three sets of conditions need all to be satisfied for a war to be just. Francisco Suárez, writing in the early seventeenth century, is one of the clearest exceptions in this respect. He said that “in order that a war may be justly waged”: 1. “the war must be waged by a legitimate authority” 2. “the cause itself and the reason must be just” 3. “the method of its conduct must be proper” 4. “due proportion must be observed at its beginning, during its prosecution, and after victory.”18 Today those who write about the just war have made further refinements and changes that I will discuss throughout this book. Let me here say something preliminary about how my own use of Just War criteria somewhat differs from the use of those criteria in traditional Just War analysis. I do not have the same understanding of the specific criteria that are often employed today in the Just War tradition, but I do appeal to the same broad criteria, especially of just cause, last resort, proportionality, and necessity. And like other recent pacifists, I focus on the killing of the innocent in war as that which makes war most problematic.19 I differ from traditional Just War theorists, except for the few who followed Cicero, in seeing that all three branches of Just War criteria must be satisfied before a war is just. Surprisingly, this has not often traditionally been the position of Just War theorists. I will spend three chapters re-conceptualizing proportionality, necessity, and innocence – the key concepts in Just War theory over the ages as well as today. I show how a re-conceptualization of proportionality, necessity, and innocence could support contingent pacifism. I also need to say something here at the beginning about the way that my analysis of international human rights law as applied to war differs from traditional ways to understand the legality of war. I focus on how the law should be, rather than focusing on what the law is. I will be influenced by the actual state of international law, but will primarily build on the extensive normative 18

19

Francisco Suárez, “On War” (c. 1610), in Selections from Three Works of Francisco Suárez . . . De Triplici Virtute Theologica, trans. Gwladys L. Williams, James Brown Scott, and Henry Davis (Oxford: Clarendon Press, 1944), repr. in May, Viner, and Rovie, Morality of War, pp. 60–65 (62). See Jenny Teichman, Pacifism and the Just War (Oxford: Basil Blackwell, 1986), esp. chap. 7; Robert L. Holmes, On War and Morality (Princeton University Press, 1989), esp. chap. 6; and James P. Sterba, “Reconciling Pacifists and Just War Theorists,” Social Theory and Practice, 18/1 (Spring 1992), 21–38.

Introduction

7

discussion in international legal theory of how we should understand the legality of war and armed conflict. In international law, there is a new movement toward seeing human rights law as applicable to wartime. I will spend three chapters discussing how this movement could be understood as supporting contingent pacifism today. I believe that the morality of war should not be understood as utterly distinct from the legality of war. Institutions are important for morality in a variety of ways. War is itself an institution, and the morality of war is a morality of an institution. It is a matter of moral concern how the people who are associated with war and armed conflict see their obligations. And it is normally through the lens of law that the most important of institutional obligations are understood. The rules of war are the norms governing this institution and rarely do people understand the rules of an institution if not at least in a somewhat legalistic way.20 Morality is a matter of objective universal prescriptions and virtues, but morality also must be interpreted subjectively, at least in the domain of recourse to war that is the main subject of this book. Some theorists of war today address morality as completely an objective matter – where the facts on the ground as well as the reasonable judgments of soldiers and civilians do not matter. Yet, it is my view that in some situations, such as concerning responsibility, subjective considerations are also important. In this respect, we might learn from a sixteenth-century discussion of just war. Francisco Vitoria wrote about whether the Spaniards of his time were justified in waging war against the Indians of the Americas. There is no inconsistency, indeed, in holding the war to be a just war on both sides, seeing that on one side there is right and on the other side invincible ignorance. For instance just as the French hold the province of Burgundy with demonstrable ignorance, in the belief that it belongs to them, while our Emperor’s right to it is certain, and he may make war to regain it, just as the French may defend it, so it may also befall in the case of the Indians – a point deserving of careful attention. For the rights of war, which may be invoked against men who are really guilty and lawless differ from those which may be invoked against the innocent and ignorant.21

We will often ask about the morality of participating in war. Such questions are of just the sort that Vitoria identified. The objective morality of participating in war is modified by the reasonable subjective judgments made by a particular soldier concerning the morality of so participating. As long as the soldier is not negligent in forming his or her judgments, the subjective judgment will constitute a significant part of the answer to the question about the morality of him or her participating in the war. 20 21

See Allen Buchanan, The Heart of Human Rights (Oxford University Press, 2013). Vitoria, De Indis et de Ivre Belli Relectiones, sect. III, para. 394, p. 155.

8

Introduction

For the contingent pacifist, what matters most is not that everyone killed in war is innocent. Instead, what matters is that there are very many ways that victims of an attack in war could turn out to be innocent, as a contingent matter. Contingent pacifists admit that war could be justified, but given what we know of wars and of political leaders now, war is rarely if ever justified.22 Part of the contingent pacifist’s brief is to explain why even though some wars may appear to be just, it is likely today that all wars are indeed unjust and this is true for wars that can be imagined occurring into the foreseeable future. Think of war fought for humane reasons, a war of so-called humanitarian intervention. Such wars seem to be the most obvious wars that would be considered just. Indeed, Augustine said that these wars were the paradigm of just wars, more so than wars of self-defense, because the former were more selfless and hence less likely to be morally problematic than the latter.23 But humanitarian wars are notoriously hard to distinguish from masked wars of aggression. At least in part this is because wars are almost always fought for mixed motives. And it is extremely hard to disentangle the motives and ascertain the true reason for why the war is being fought. So, from the standpoint of what evidence is available, it would be wrong to engage even in humanitarian wars today. Of course, I will need to say much more in defense of this controversial claim as the book proceeds. There is a variety of moral risks that soldiers should consider, and that jointly support contingent pacifism. Contingent pacifists do not start by criticizing those who are combatants but rather counsel that the best response for soldiers who are contemplating participating in wars is not to fight because of war’s moral risks. Indeed, this way of thinking of pacifism makes it a commonsense view rather than a view that is “unworldly.” It is important that those who are critical of pacifism have a target that starts from a commonsense position of giving advice to soldiers rather than a position that might be seen as blaming those who fight in war. While some wars like World War II seem to have been justified, wars today do not seem to be justified, largely because the reasons to go to war as well as the tactics and strategies of contemporary war are morally objectionable, or at least not clearly unobjectionable. Yet, contingent pacifists are not opposed to all wars, and the reasons to oppose war are not grounded in absolute principle but in the commonsense idea that States and peoples are too quick to go to war and when they do go to war the tactics and strategies generally do not match the reasons for engaging in war. Here the necessity of going to war, or of using a particular tactic, will be paramount considerations. And as we will see in 22

23

I here draw on H.L.A. Hart’s discussion of the minimum content of the natural law in The Concept of Law (Oxford University Press, 1961), especially his idea that humans could one day develop hard shells, like crabs, that made them impervious to physical attack. Augustine, City of God, Book 19, sect. 6.

Introduction

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Chapter 5, I have a strikingly different way to understand necessity than the way that term is used today in Just War theory or in the law of war.

III

Notes on method

Next let me present some preliminary procedural comments concerning the style and method of argument of the book. I will often refer to debates in the history of moral and legal thought for guidance, as I just did in the case of Vitoria’s sixteenth-century account of the morality of the Spanish conquest of the Indians in the Americas. One reason to do this is that I feel that the plausibility of a particular position can be enhanced if it has stood the test of time by some of the great theorists throughout history having espoused similar things.24 This is especially true of moral and legal theorizing which depends so much on one’s intuitions. In order to make sure that our current intuitions about a particular case are not historically idiosyncratic or biased, it will be useful to see whether those intuitions were also held in earlier historical periods. In addition, I am simply intrigued by how many people writing on the morality and legality of war do not know that the very same issues have indeed been debated for centuries and in some cases for millennia. And also I myself am more often drawn to the historical discussions because they seem to proceed more quickly to the theoretical heart of the matter, without feeling that all of the current literature has to be surveyed first. In any event, I admit my own bias toward the historical rather than the contemporary debates, and ask the reader’s indulgence in this regard. In addition, I aim in this book to appeal to a broader audience than merely those philosophers and lawyers who are writing on war today. For this reason, I will avoid technical terminology whenever possible, especially Latin terms of art in debates about the morality and legality of war today. The ideas of pacifism and the just war are not merely an academic subject, but an intensely public topic. I will engage with some of the most important and most recent scholarship, but will largely confine those discussions to the footnotes. There is also a methodological dispute about how to begin to understand cases of war and armed conflict. As Seth Lazar has said, “Contemporary discussion of the ethics of war is dominated by reductive individualists. Reductive individualists believe that justified killing in war reduces to justified acts, by individuals, of self- and other-defense.”25 Like Lazar, I do not subscribe to this assumption of many contemporary Just War theorists. 24 25

See Hugo Grotius, De Jure Belli ac Pacis (On the Law of War and Peace, 1625), trans. Francis Kelsey (Oxford University Press, 1925), Prolegomena. Seth Lazar, “Necessity in Self-Defense and War,” Philosophy and Public Affairs, 40/1 (2012), 3–44 (23–24). Lazar is one of the few analytic philosophers working in the Just War tradition who does not subscribe to this reductive account.

10

Introduction

I think of war and armed conflict as largely matters involving the interactions of collectives. In this respect, role morality is as important as individual morality. So, while I agree as a methodological matter that all collective action is merely a matter of organized individual action, the forms of organization matter and cannot themselves be reduced to individual mental or physical states.26 Quite a bit is lost if one fails to note the complex organizational structures that are indicative of war. Perhaps more importantly, I disagree with nearly all contemporary Just War theorists in that I think that highly stylized hypothetical cases do not reveal much about the morality of war and armed conflict. Speaking personally, I simply do not have strong intuitions, or often any intuitions at all, about the highly stylized hypothetical cases that dominate the current literature. Also if we who work on philosophical issues concerning war want to say something to our fellow citizens who must make decisions about how to regard today’s wars, we will need to speak in an idiom that an educated citizenry can understand. And highly stylized examples, as well as the use of many technical terms, in my experience, simply do not have much purchase for the educated public. Since I want this book to be able to speak to an educated public, I will not appeal to such stylized hypothetical examples, and I will not engage with the literature that relies on such examples. For some readers, this may be sufficient reason not to read any further – I accept that fact. Nonetheless, I will try to engage with the ideas presented in the Just War, and pacifist, literature today. But I will do so without following most of the philosophers in those current fields in assuming that all cases in the morality of war must be reduced to cases of individual self-defense. And I will not engage in what is sometimes called “intuition mongering” by use of certain current methods. This is not to say that I will not be appealing to intuitions, mostly the intuitions of an educated public, but that I will not do so by reference to examples that are hard to imagine ever occurring let alone ones that the reader could imagine being involved in. IV

Why “contingent” pacifism?

Contingent pacifism owes debts to both traditional pacifism and the Just War tradition. One question to ask is whether or not contingent pacifism is sufficiently different from the dominant views about the morality and legality of war for it to be truly a third option. In this section I will give a preliminary answer to this question that points to why at very least our debates about war should include the term, and the corresponding concept, of contingent pacifism. If nothing else, exploring the terrain of contingent pacifism will help both traditional pacifists and Just War theorists better to see not only what is at 26

See Larry May, The Morality of Groups (Notre Dame University Press, 1987).

Introduction

11

stake but also what the common ground is between these traditionally opposed positions. I do not see that contingent pacifism is in opposition to Just War theorists, or traditional pacifists for that matter. Indeed, as many have recognized, new versions of Just War theory come very close to pacifism. Today, Just War theorists are indeed taking seriously certain forms of pacifism.27 Often, though, when pacifism is considered it is not approached from a sympathetic position – it is common to say that if one takes a certain line in Just War theory in a certain direction then it will implausibly result in pacifism. Just War theorists have generally resisted embracing pacifism. And when someone raises pacifist challenges to Just War theory, it seems that the first reaction is to belittle the theory by failing to note that there could be a form of pacifism that does not fall prey to the standard counterexamples.28 Contingent pacifists admit the possibility of a just war – an admission that was not made by traditional pacifists. Many philosophers have successfully constructed hypothetical cases that they think pacifists cannot avoid accepting, or that put pacifists in untenable positions if they deny that these are just wars. For example, what if your peace-loving democratic country was being invaded by a fascist State that sought to enslave all of your fellow citizens, and that cannot be stopped by any other means than by war. One of the main intuitive moves that I will make in this discussion is simply to admit that there are counterexamples to traditional pacifists who deny that there is or could be a just war. But unrealistic examples do not prove that war has been or will be just. On the other hand, traditional pacifists have also made highly intuitive arguments against Just War theorists, especially concerning the seeming inevitability of the taking of innocent life during war. I will build on this insight in subsequent chapters, but will not merely assume that all conceivable wars will inevitably lead to the killing of the innocent. My book is aimed in part at convincing those who think there could be a just war to take contingent pacifism seriously. But I do not see this as a battle between these views. Instead I will note the many points of agreement between Just War theorists and contingent pacifism. Perhaps it will seem that there are so many commonalities that contingent pacifism should not be seen as a separate 27

28

See Jeff McMahan, “Pacifism and Moral Theory,” Diametros, 23 (March 2010), 44–64; and Seth Lazar, “The Responsibility Dilemma in Killing in War,” Philosophy and Public Affairs, 38 (2010), 180–213. Also see Henry Shue, “Do We Need a ‘Morality of War’?” in Henry Shue and David Rodin (eds.), Just and Unjust Warriors (New York: Oxford University Press, 2008), p. 100, where he says: “War is not about killing people who are morally liable to be killed: it is about killing people who may kill you. This may be a good reason to reject war as pacifists do; it is not a feature of war that can be reformed.” See Jan Narveson, “Pacifism: A Philosophical Analysis,” Ethics, 75/4 (July 1965), 159–271. Also see Andrew Alexandra, “Political Pacifism,” Social Theory and Practice, 29/4 (October 2003), 589–606, for a partial refutation of Narveson’s argument by arguing that institutions, not personal choice, are the key component of pacifism.

12

Introduction

view at all. Even this would not bother me – for I have spent many years regarding myself as a Just War theorist. But I now see that many Just War considerations push toward pacifism, at least contingent pacifism. And perhaps because of my strong support for Just War theory over the years, I will also argue that pacifists need to take more seriously the arguments of Just War theorists. I will thus also argue that traditional pacifists should take contingent pacifism more seriously as well. Contingent pacifists are pacifists whose support for pacifism is contingent on several things. Most importantly, contingent pacifists insist that for a war to be just it must satisfy all just war conditions, as those conditions are understood by contingent pacifists, especially the revised versions of the proportionality and necessity conditions. Contingent pacifists admit that there can be just causes, such as war waged to stop a genocide. And it is also possible, although less so, that a war could be fought justly, or ended justly. The contingent pacifist’s pacifism is contingent on the claim that wars are just only if they satisfy the conditions for all three branches of Just War theory. And satisfying all of the Just War criteria is very difficult. Contingent pacifism is contingent on the fact of the failure of any war to satisfy all of these conditions. In addition, contingent pacifists are pacifists whose support for pacifism is contingent on certain facts about how humans form governments and how those governments respond to geopolitical challenges. Human nature could change radically in the distant future. As H.L.A. Hart surmised, people may one day develop hard shells like crabs that would make humans impervious to assault.29 Contingent pacifists’ support for pacifism is contingent on the assumption that this will not occur. In addition, it is assumed that the way people form governments and the way that States interact with each other also will not change radically. And it is assumed that the current trajectory of more and more wars and armed conflicts taking place in cities will also not reverse itself in the foreseeable future, especially as the world’s population continues to grow. Contingent pacifists also assume that States and their governments will not figure out ways to wage war that do not risk the lives and rights of all parties, especially the rights of all soldiers who participate in a war or armed conflict. It is possible, of course, that war in the future could be waged exclusively by robots or exclusively by cyber attacks and counterattacks. Contingent pacifists would not necessarily oppose such wars, if they could properly be called wars at all.30 The pacifism that contingent pacifists embrace is contingent on the nature of war not radically changing. 29 30

Hart, Concept of Law. See Larry May, “The Nature of War and the Idea of ‘Cyberwar,’” in the collection on cyberwar edited by Jens Ohlin, Kevin Govern, and Claire Finkelstein (Oxford University Press, forthcoming).

Introduction

13

Many of the current facts that make a just war highly unlikely are also similar to facts that made wars in the past highly unlikely to be just as well. In this respect consider facts about how the leaders of States respond to crises. In nearly all times, State leaders have gone to war before they have exhausted non-war alternative dispute-resolution mechanisms. And yet one of the pillars of the justice considerations about the initiating of war of Just War theory is that war is only just when it is waged as a last resort. If State leaders were collectively to come to their senses and pursue war truly only as a last resort, then some of the contingent pacifist’s opposition to war would be overcome. But of course that would only concern one of the conditions for initiating a just war, and a just war would still have to satisfy the other conditions as well. V

The challenge of human rights and international law

Today, most political, moral, and legal theorists claim to be proceeding from a human rights standpoint. This orientation is supposed to mark the difference, for instance, between older and contemporary Just War theory. Concerning the initiation of war today it is common that the only “just cause” to go to war that is recognized is the protection of rights – either self-defense rights or the rights of others. Yet, it is not clear if there are many or even any wars today that would satisfy these just cause conditions. And even if there are just causes, it is unlikely that the last-resort condition will also be satisfied. One of the main reasons for this is that it is not clear that geopolitical constraints will allow States to pursue all available diplomatic means before recourse to war is initiated. It is the conduct-of-war arguments that have been most difficult for defenders of war to assimilate into their human rights reasoning. As we will see in greater detail later, traditional Just War theorists did not see soldiers as counting much in such assessments. Some Just War theorists today have stressed that those soldiers who fight on the unjust side of a war do not have the right to kill enemy soldiers. Indeed, these “unjust soldiers” are said to incur liability to be killed by others but not to have the right to kill others. Yet it is very difficult to tell which side one fights on, and so there are grave moral risks for anyone who fights in a contemporary war. Increasingly, those who pursue the third prong of the Just War theory, concerning justice at the ending of war, focus on the need for wars to be initiated and fought with an eye toward reparative justice and reconciliation at the end of war. Yet, wars today fail to be initiated or waged in such a way that a just reconciliation is likely to occur after war ends since rarely are wars conducted with clear exit strategies that would bring the warring parties together in a just resolution at war’s end. As just one example, the lack of funds available for

14

Introduction

reparations at war’s end makes the war unlikely to be ended justly. The overall morality of war is affected by this consideration. Wars today generally fail to take the human rights of citizens seriously and hence a position like contingent pacifism is rendered more plausible. In this respect, contingent pacifists will follow some of the reasoning of Just War theorists. But in addition, contingent pacifists will wonder why proportionality considerations have in the past only concerned the lives of civilians and not also all of the lives of soldiers. In addition, the idea of necessity that has been employed by Just War theorists is also criticized by contingent pacifists. Recent Just War theorists claim to be following a model that looks to the morality of two-person cases of self-defensive killing. But in such cases, despite the way they are often understood, strict necessity is not maintained, that is, killing is allowed even in those cases where it is not strictly necessary for defending one’s life (where non-lethal force may accomplish the same objective). And so while the criteria appear to be the same for Just War theorists and contingent pacifists, there are significant differences that will be explored in later chapters. The same potential support for a certain kind of pacifism can be seen in contemporary international law. The main document in international law concerning the legal justification of initiating war, the United Nations Charter, had as its goal to diminish to the vanishing point the traditional defense of the resort to war of individual states. The Preamble of the UN Charter declares: “We the People of the United Nations [are] determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.” It is because of such statements, grounded in a deep concern for human rights, that the UN Charter is sometimes today called a pacifist document, or seen as expressing a weakening of the idea of self-defense as justifying unilateral recourse to war by States.31 In international legal theory there has also been a strong turn toward human rights concerning the legality of the conduct of war, in contrast to the past understanding of the rules of war that were premised on the idea that mutual killing in war is consistent with international law. The increasing importance placed on human rights in the law of armed conflict today has spawned the recognition that international law can support contingent pacifism. In a series 31

See Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America), International Court of Justice, Jurisdiction of the Court and Admissibility of the Application, Judgment of November 26, 1984, para. 92; Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America), International Court of Justice, Merits, Judgment of June 27, 1986, para. 188; Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, Advisory Opinion of July 8, 1996, para. 96; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice, Advisory Opinion of July 9, 2004, para. 87. For an analysis of these cases see Chapter 7, Section III.

Introduction

15

of international court decisions and interpretations of international law, the rights of soldiers, especially their rights to life, have been given increased importance.32 These human rights considerations change the way to think about how war and armed conflict can be legally initiated, conducted, and ended today. The legal justification for conducting armed conflict is regulated by treaties and customs of what is called international humanitarian law. Humanitarian law, despite its name, grants States the right to kill enemy soldiers nearly without limitation – instead it mainly regulates the suffering of soldiers. In the past, the killing of soldiers during war was not a reason to think that the war was illegal. The focus of international humanitarian law was on the illegality of directly killing civilians, or causing unnecessary suffering of soldiers. But today there is an increased emphasis on human rights law as providing legal considerations competing with the traditional legal model of international humanitarian law. International law has traditionally focused on restricting the killing of civilians. But some international legal theorists are beginning to focus also on the right to life of soldiers. The human rights of soldiers are beginning to play an important role in determinations of a re-conceptualized military necessity and proportionality today. As a result, I would argue that in the law of war’s conduct considerations, the “humanization of international law,” to use a phrase from Theodor Meron, provides support for a limited pacifism, such as contingent pacifism. And in international legal discussions about justly ending wars or armed conflicts, there are also issues raised that mirror the moral debates among Just War theorists about whether war can be initiated if there is not a clear exit strategy for the end of war. This idea is especially prevalent in counterinsurgency discussions.33 Some other theorists are asking whether the conduct of war is not also influenced by the increase or decrease of reconciliation at war’s end. Indeed, from a counterinsurgency standpoint it is often said that one must win the hearts and minds of the citizenry if there is to be any chance of a just and 32

33

See Legality of the Threat or Use of Nuclear Weapons, para. 24; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para. 102; International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (Geneva: ICRC, 2009), sect. IX, paras. 78–79; Public Committee Against Torture in Israel and Palestinian Society for the Protection of Human Rights and the Environment v. Israel, ILDC 597 (IL 2006), para. 40; Case of Al-Skeini and Others v. United Kingdom, European Court of Human Rights (Grand Chamber), Application no. 55721/07, July 7, 2011. For an analysis of these cases, see Chapter 7, Section III and Chapter 8, Section I. Counterinsurgency is now premised on the idea that the best way to defeat insurgents is to convince the population that the insurgents will make matters worse for the population than will occur if the insurgents are driven from their homeland. Indeed, the very idea that bombs should be dropped on insurgent targets has increasingly been called into question in recent wars in Iraq and Afghanistan. For more discussion of this issue, see Michael Newton and Larry May, Proportionality in International Law (Oxford University Press, 2014), chap. 8.

16

Introduction

lasting peace. Such considerations also seem to support contingent pacifism, as I and others have pointed out.34 VI

The concerns of conscience

Let us turn to the moral and legal issues concerning conscientious refusal that I will also pursue in three chapters at the end of this book. Contingent pacifism shares much in common with selective conscientious objection, both in law and morality. The absolute conscientious objector is opposed to participating in any war because his or her conscience will not let him or her violate core beliefs that oppose all wars, often on strict religious grounds. The selective conscientious objector asks to be exempted only from a current war. But the selective objector is also asking for an exemption from participating in war because of deeply held conscience-based beliefs. These beliefs could be grounded in a religious or a secularly ethical perspective. But the beliefs do not encompass rejection of participation in all wars. As with all conscience-based objections to serving in the military when one is legally required to do so, either through conscription or past acts of volunteering, there is also an affinity between conscientious refusal and civil disobedience cases. In both cases, a person violates the law or refuses to follow the law out of moral reasons. On some accounts, there is a significant difference between conscientious refusal and civil disobedience. Normally the difference is said to be that in the case of the conscientious objector the reasons have to do with the integrity of the self. But in the case of the person engaging in civil disobedience the reasons have to do with what is perceived to be good for the society.35 I will argue that the differences between these two types of law-breaking or law-avoidance – civil disobedience and conscientious refusal – are not as significant as they are sometimes portrayed to be. The conscientious objector need not be characterized as merely demanding to receive an exemption out of purely personal reasons. Indeed, I and many selective conscientious objectors were opposed to serving in a specific war because we thought that specific war was an unjust war. The act of conscientious refusal in such cases is very similar to the paradigm case of civil disobedience, in that the individual refuses to obey the law because of moral reasons that make reference to the good of the society. In the last part of my book I will take up the complex reasons that people have for becoming selective conscientious objectors and argue that the State needs to take these individuals very seriously lest the State undermine its own legitimacy. Indeed, the legitimate authority to wage war, for centuries thought to be one of the 34 35

See May, After War Ends. See Kimberley Brownlee, Conscience and Conviction (Oxford University Press, 2012).

Introduction

17

crucial conditions for a just war, must take account of arguments about the justifiability of the State calling for its young men and women to participate in a specific war. Like the historical defenders of civil disobedience, the selective conscientious objector puts considerations of conscience ahead of fidelity to law. There are problems with this view, especially if it is hard to tell whether the selective objection is truly grounded in conscience or merely grounded in expediency. When a pacifist, traditional or contingent, asks for an exemption from participating in war, there are significant fairness issues that arise about the equal treatment of citizens before the law. As we will see when we consider the case of Huck Finn, things get even more difficult if the voice of conscience is said to be merely pointing to subjective as opposed to objective standards of behavior. And there remain significant problems in knowing what is subjective and what is objective when conscientious judgment is being discussed in real time. There are serious complications involved in the case of conscientious objectors who demand to be released from military service in which they are currently engaged. I will argue that such problems can be overcome or their negative consequences diminished. But I am particularly worried about this case, which is the most difficult case facing a State that takes its soldiers to war where the soldiers are not conscripts. While the comrades of these soldiers need to act responsibly, the State should not force its citizens to continue to participate in wars that those citizens believe they have good moral grounds to oppose. In respect to the positions I defend concerning conscientious refusal, there has been much more support from Just War theorists lately than in respect to other positions I defend in this book. Many Just War theorists think that soldiers should refuse to fight in unjust wars, and people should not join the military at all if it seems likely that they will be asked to serve in unjust wars. As I defend contingent pacifism I will offer some different arguments in support of conscientious refusal, but the arguments will be ones that Just War theorists could support. Indeed, on this issue, traditional pacifists and Just War theorists often join together in support of those who refuse to fight on consciencebased grounds.36 But it is not often spelled out how conscientious refusal fits with other positions taken in the debates between pacifists and Just War theorists. I will argue that contingent pacifism is somewhat better suited to support selective conscientious refusal than either traditional pacifism or Just War theory. The chief reason for this is that both selective conscientious refusal and 36

See Jeff McMahan, Killing in War (Oxford University Press, 2009), chap. 2, sect. 8; and C.J.A. Coady, Morality and Political Violence (Cambridge University Press, 2008), chap. 11.

18

Introduction

contingent pacifism admit the justifiability of some just wars, but deny that there is any reason to think that this current war is such a war. It is as if these positions, contingent pacifism and selective conscientious refusal, were made for each other in that they both depend on uncertainty. In this sense I will conclude the book with a detailed discussion of selective conscientious refusal and its justification as rooted in contingent pacifism. But I readily acknowledge that one does not need to be a contingent pacifist to support conscientious refusal, and I applaud those Just War theorists who forthrightly support conscientious refusal as well. Indeed, this is an area of great overlap between various theorists today. The abuses and also the normal activities of war that contribute to war’s horrors call for those who lead their nations into war to do all they can to diminish the incidence of, and their citizens’ complicity in, war. Those in democratic states cannot claim that they merely acquiesce in what their leaders dictate. Instead, more and more citizens are complicit in decisions to go to war. In my view, these complicit citizens are not liable to be attacked or killed, but they are tainted by their complicity, especially since even democracies today do not support alternatives to war as much as they support the war culture. In such conditions, war is not a last resort. And the kind of changes necessary to make war today a last resort would require a change in the war culture that is unlikely to happen into the foreseeable future. Contingent pacifism may not be seen as properly a form of pacifism, since it does not condemn all war, and remains open to the possibility of a just war. But if such a criterion were to be applied to earlier pacifist accounts, many would probably not pass muster as forms of pacifism either. And in any event, regardless of whether contingent pacifism is a form of pacifism or a form of non-standard Just War thinking, it has emerged as a serious doctrine that should have wide appeal among moral and political theorists. And there are equally serious problems with the reigning model in international law concerning the initiation, conduct, and ending of war that is emerging today. Serious attention to the issues raised by contingent pacifism is especially important in liberal societies that struggle with the problem of how to respect, not merely tolerate, the integrity of all citizens. Today we are in need of a renewed discussion of pacifism. In the past, wars of all sorts were seen as justified as long as the State claimed that it needed to engage in that war for the welfare of its people. The best examples of justified wars were those that were claimed to be necessary to repel an invasion – to counter wars of aggression. The new paradigmatic just war, humanitarian wars of intervention, has turned many well-intentioned people who would otherwise be skeptical of war into supporters of armed conflict. This is true of people at both ends of the ideological political spectrum, as is becoming more apparent each day.

Introduction

19

As I write this, there is a drumbeat of those in US society who want the US to engage in armed intervention in Syria and Iraq to stop massacres from occurring in these very destructive civil wars. The arguments today are heartfelt and worthy of being taken very seriously. Some kind of response is needed by those who think that war today cannot be justified even in such pressing cases. Throughout this book I will try to speak to this new breed of supporters of armed conflict, as well as to a new wave of Just War theorists who are concerned with human rights. The arguments in favor of humanitarian wars of intervention are powerful – hopefully the arguments of those who oppose these wars will be equally worthy of consideration.37 37

See Saba Barzagan, “The Permissibility of Aiding and Abetting Unjust Wars,” Journal of Moral Philosophy, 8/4 (2011), 513–29.

Part I

Varieties of Pacifism

2

Traditional pacifism

The main idea behind most traditional pacifist accounts is quite simple and highly plausible, namely that it is morally unacceptable for practices or institutions to be designed that countenance the intentional killing of those who are innocent. In many of these views, it is also wrong to kill anyone, whether innocent or not. But the highly intuitive premise that many have found appealing is that all wars involve the intentional killing of innocent people and hence that all wars are morally wrong. In addition, other early pacifists argued that we should not allow ourselves to become tainted, especially by our association with killing, with the blood of others on our hands. Moral purity calls for no one to kill or participate in killing anyone else. And a third strain in pacifist thinking is closely tied to the Just War tradition, where it is argued that no current, or even past, wars can meet the standards for a just war. These three ideas, either separately or in combination, are the main ideas associated with traditional pacifist positions. In this chapter I will discuss several of the most prominent historical accounts of pacifism in Western philosophy as well as some of the problems with these views. I will begin with a discussion of the work of Seneca, the Roman Stoic philosopher who was one of the first to discuss pacifism in the context of the suffering of the innocent. I then discuss one of the early Church Fathers, Tertullian, who focused on moral purity and avoiding taint. And then I turn to the Renaissance philosopher, and secular theorist, Erasmus, who was responding to the Just War tradition’s arguments for a just war. In the fourth section I will offer some critical reflections on these traditional pacifists. In the fifth section I will compare traditional pacifist views to those of the Just War. And in the final section I discuss several contemporary pacifist positions. I

Seneca on restraint from harming the innocent

We begin with the writings of the greatest of the Roman Stoics, the first-century philosopher Seneca. Here is a long quotation on war: It was once more simple because men’s sins were on a smaller scale, and could be cured with but slight trouble; in the face, however, of all this moral topsy-turvy men must 23

24

Varieties of Pacifism

leave no remedy untried. And would that this pest might so at last be overcome! We are mad, not only individually, but nationally. We check manslaughter and isolated murders; but what of war and the much-vaunted crime of slaughtering whole peoples? There are no limits to our greed, none to our cruelty. And as long as such crimes are committed by stealth and by individuals, they are less harmful and less portentous; but cruelties are practiced in accordance with acts of senate and popular assembly, and the public is bidden to do that which is forbidden to the individual. Deeds that would be punished by loss of life when committed in secret are praised by us because uniformed generals have carried them out. Man, naturally the gentlest class of being, is not ashamed to revel in the blood of others, to wage war, and to entrust the waging of war to his sons, when even dumb and wild beasts keep the peace with one another.1

This is one of the first philosophers to set out a basis for pacifism grounded in a condemnation of the slaughter of the innocent that all war is thought inevitably to produce. The central problem identified by Seneca is that when crimes are small and committed by individuals we condemn them and even sentence those who commit them to death. Yet, during war, when the same acts are committed on a large scale, even involving “the slaughter of whole peoples,” we treat them as admirable. The cruelties inflicted by nations during war are thought to be not morally problematic even though such acts are “forbidden to the individual.” Seneca also provided an astute explanation for how it is that soldiers are trained to kill innocent people that they would otherwise be loathe to kill. Just as the soldier’s primary bond of union is his oath of allegiance and his love for the flag, and a horror of desertion, and just as, after this stage, other duties can easily be demanded of him, and trusts given to him when once the oath has been administered; so it is with those whom you would bring to the happy life: the first foundations must be laid, and virtue worked into these men. Let them be held by a sort of superstitious worship of virtue; let them love her; let them desire to live with her, and refuse to live without her.2

Such sentiments could easily be expressed today about the nationalistic fervor that often grips a people and makes them think that killing is acceptable, perhaps even required, when it is directed at their enemies. Seneca refers to the war mentality as “widespread madness,” which fails to see that the slaughter of the innocent in war is not different from the killing of people by murderers. He expands on this theme in his treatise On Anger. That king’s anger was with an unknown people, who did not deserve it but yet could have felt it. Cyrus’ wrath was with a river . . . He attempted to ford the river Gyndes in full flood . . . one of the white horses that usually drew the royal chariot was swept away. 1

2

Lucius Annaeus Seneca, Ad Lucilium Epistulae Morales (Moral Epistles), trans. Richard M. Gummere, vol. III, Loeb Classical Library 77 (Cambridge, MA: Harvard University Press, 1925), pp. 77–79. Ibid., p. 81.

Traditional pacifism

25

He swore he would reduce that river . . . [cutting] one hundred eighty channels into the river on either side . . . And so time was lost . . . as was the morale of his soldiers, broken down by the useless labor . . . Such madness – what else can you call it? – has affected Romans as well.3

The destructiveness of war is directed not merely at people but even at nonhuman creatures and inanimate objects due to the anger of rulers who take their nations to war. The anger that first motivates rulers to destroy people and even rivers can be described as nothing short of madness. Instead of displaying anger, Seneca famously argues that rulers should display mercy even to those who have done them wrong, a common position of traditional pacifists. In his treatise On Mercy, Seneca says: if a man seeks calm leisure, he acquires here a virtue which, with its love of peace and restraint on action, suits his nature. Of all men, however, mercy becomes no one more than a king or prince . . . So, even culpable citizens should be spared . . . How tiny is the harm done by the cruelty of private individuals! But the raging of princes means war.4

Seneca thus offers moral arguments, grounded in virtue, for thinking that kings should restrain themselves from going to war. In addition, Seneca offers practical reasons against going to war as well. He points to the fact that war is often counterproductive to securing a lasting peace. Private individuals are likelier to have wrongs done to them by putting up with wrongs which already have been done. For kings, however, the surer way to security is through gentleness, since frequent punishment, while it crushes hatred in a few, arouses it in everyone . . . the cruelty of a king increases the number of his enemies by removing them. Parents and children of the slain, kinsmen and friends, take the place of each single victim.5

War is wrong because it is not only incompatible with the virtuous life but it is also not productive of what people and their leaders most seek, a just and lasting peace. Seneca traces the slaughter of innocents in war to the drive for vengeance that overcomes many kings and princes. Seneca then addresses the claim that meting out vengeance is justified if there is a serious wrongdoer who deserves to be punished for what he or she has done. Having mentioned the gods, I can do no better than to make them a model for the prince . . . If the gods, neither implacable nor unreasonable, are not given to pursuing 3 4

Seneca, “On Anger,” in Seneca: Moral and Political Essays, ed. John M. Cooper and J.F. Procope (Cambridge University Press, 1995), pp. 97–98. 5 Ibid., p. 137. Seneca, “On Mercy,” ibid., pp. 132–34.

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the crimes of potentates immediately with their thunderbolts, how much more reasonable it is for a man set in authority over men to exercise his command in a gentle spirit and to reflect.6

Seneca comes to the conclusion that making displays of anger, even if it can otherwise be justified because of wrongs done to the king or his citizens, “is not becoming of a king.” And the same is true for acts of war, again even if otherwise justified, as a response of vengeance. Seneca here provides one of the most significant groundings for pacifism, concerning respect for innocent life, and one that for many people has stood the test of time. II

Tertullian on moral purity and avoiding taint

Tertullian wrote only about a century after Seneca but from a very different perspective. Seneca was a noble Roman, whereas Tertullian was a convert to Christianity. Nonetheless they were both pacifists. In an essay on why Christians should accept martyrdom rather than engage in sin, the second-century priest and lawyer, Tertullian, argued that the great evil to be combated by Christians was the devil. Tertullian discusses two kinds of war: war against the devil, and war against one another. In an essay, “To the Martyrs,” Tertullian associates war with the strategy of the devil: “Do not allow him the good fortune in his own kingdom of setting you against one another, but let him find you fortified by the arms of peace among yourselves, because peace among yourselves means war with him.”7 And in another essay, “The Chaplet,” Tertullian says that the key to leading a good life is to remain untainted by the pursuit of worldly goods that cause one to do what Christ has condemned: “Keep untainted, therefore, for God . . . Be you, too, faithful unto death; fight, too, the good fight whose crown the Apostle feels so justly confident has been laid up for him . . . [that you have] advanced in rank in the heavenly army.”8 For Tertullian, the true army is that of the people of God, who can only join God’s army by remaining untainted by not doing such things as declaring allegiance to a secular ruler’s army. The early Church Fathers were mainly pacifists who took very seriously Jesus’ admonition to turn the other cheek rather than to strike out at those who have harmed them. Tertullian takes this position much farther, and in fact broke with many other Church Fathers whom he thought had not properly understood the seriousness of the injunction not to serve false gods. A person is tainted even 6 7

8

Ibid., pp. 135–36. Tertullian, “To the Martyrs,” in Disciplinary, Moral, and Ascetical Works, trans. Rudolph Arbesmann, Emily Joseph Daly, and Edwin A. Quain (New York: Fathers of the Church, 1959), pp. 18–19. Tertullian, “The Chaplet,” ibid., pp. 266–67.

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by association with violence and war. And to avoid such taint it is necessary not to serve secular rulers at all since to do so was to place the secular rulers ahead of God. From this perspective, Tertullian argues that all worldly human goods, including intellectual pursuits, should be seen as having diminished importance compared to the goods of religious purity. Pacifism is here advocated because of its purity. The images of taint and purity are of central importance to Tertullian’s belief that any public service was morally wrong. Most especially any military service that was aimed at killing fellow innocent humans, rather than aimed at slaying the devil, could not be countenanced. There were seemingly only two categories: to live life purely in God’s service, or to be tainted by any service or homage to anyone other than God. Here is one of the central strains in traditional pacifism – an insistence that people lead their lives purely and not engage in any activity that would compromise their eternal souls. It should be noted, though, that Tertullian did not restrict his condemnation of worldly matters to a critique of military action. Tertullian condemned all worldly things – including even the study of philosophy. It is positions like this that have given rise to the claim that pacifists are otherworldly and naïve. In one of his most significant essays, on the soldier’s chaplet (a crown composed of laurel), Tertullian gives clear support for the charge of being an extremely unworldly pacifist. Tertullian not only argues that it is against God’s law to engage in military service, because all of our efforts should be expended on God’s service against the devil. He also goes on to argue that even if military service were abolished, it would still be wrong for anyone to take on the trappings of military life.9 The symbol of such a life involves accepting such things as crowns of flowers, which are bestowed on those who have sworn allegiance to their rulers. Tertullian devotes an entire treatise to showing that it is wrong to accept such rewards even outside of the domain of an existing secular military. In particular, Tertullian argues that any complicity with military culture is wrongful. Take the annual public pronouncement of vows. What do you think of it? . . . Is it not a denial of faith? Even though the Christian says nothing on that occasion with his mouth, he makes his response by having the crown on his head. The wearing of the laurel crown is likewise enjoined . . . Idolater! . . . You cannot serve God and mammon.10

For Tertullian, even the attendance at a public ceremony where vows of patriotism are taken produces the kind of taint that should be completely avoided. Tertullian’s explicit rejection of all military service for Christians is framed in the starkest of terms: “For, military service offers neither exemption from punishment of sins nor relief from martyrdom. The Gospel is one and the same 9

Ibid., pp. 258–59.

10

Ibid., p. 260.

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for the Christian at all times whatever his occupation in life. Jesus will deny those who deny Him . . . He will destroy the one who has been gained against His Name.”11 As can be seen here, Tertullian advocates that those who are conscripted refuse to serve even if the alternative is death. He sees such death as “martyrdom” and even argues that it is wrong to run from persecution.12 Tertullian argues that each of the activities involved in military service is proscribed explicitly by the word of God. Is it likely that we are permitted to carry a sword when our Lord said that he who takes the sword will perish by the sword? Will the son of peace who is forbidden to engage in a lawsuit, espouse the deeds of war? Will a Christian taught to turn the other cheek when struck unjustly, guard prisoners in chains and administer torture and capital punishment? . . . Will he protect at night those very demons whom in the daytime he has put to flight by his exorcisms, leaning on a lance such as pierced the side of Christ?13

Tertullian’s rejection of all aspects of military life is the kind of pacifism that traditionally has been seen as an uncompromising position not contingent on any current situations or developments in practical life. Tertullian’s absolutism highlights the type of pacifism that has been widely criticized over the intervening centuries, where it is sometimes said that the pacifist cares more about symbolism than reality. But it seems to me that Tertullian and some of the other Church Fathers were following ancient Greek and Roman conceptions of morality where what mattered most was that one not do or associate with wrongdoing of any sort. Again the idea is to be pure rather than tainted in any way. In some sense, it was the “touching” of wrong, not necessarily the doing of wrong, that conveyed a stain, hence taint, to the person who touches it.14 In another essay, Tertullian warns against the “perversion of conscience leading to self-deception.”15 Being tainted and having one’s conscience perverted are important themes in Greek ethics as well, since such an ethic focuses on character more than action. For Tertullian, it is the purity of soul that is of most concern where that means that how one behaves takes precedence over what one brings about or could bring about. In order to attain heaven, one must have had a purity of soul that is untainted by compromise or complicity with wrongdoing. In some respects this is an admirable way to think about morality, as a staunchly principled guide to action. But this is also not a view that many people think is consistent with common sense. 11 13 14

15

12 Tertullian, “Flight in Time of Persecution,” ibid., p. 282. Ibid., p. 257. Tertullian, “The Chaplet,” ibid., p. 256. See Arthur W. H. Adkins, Merit and Responsibility: A Study in Greek Values (Oxford: Clarendon Press, 1960). I comment much more extensively on these issues of taint and purity in Chapter 6. Tertullian, “Spectacles,” in Disciplinary, Moral, and Ascetical Works, p. 48.

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The idea of moral purity is central to the early Christian conceptions of pacifism. In addition, early conceptions of pacifism focused on the innocence of those who were most likely to be killed or wounded during battle. In the next section we will look at a representative account of pacifism that focuses more on the reasoning of those who defend war and less on the purity of soul or character that epitomized views like that of Tertullian and some other Church Fathers. While Tertullian presents a model of the absolutely virtuous person, it is a model that few would wish to emulate.

III

Erasmus’ arguments against the Just War

Erasmus shares some of Tertullian’s views on how war is best seen as tainting those who start wars with the blood of those who are killed. But Erasmus, living at the end of the medieval period, has seen the rise of the Just War tradition and focuses his arguments on countering the positions taken by the defenders of the Just War. He is especially concerned to rebut the Christian theologians who have come to the defense of war, even war waged against other Christians. In his 1521 book, Querela Pacis (The Complaint of Peace), Erasmus speaks of how a ruler should “keep his hands unstained with blood.”16 In evocative language he says: “What hast thou to do with the cross of Christ on thy banners, thou blood-stained soldier? With such a disposition as thine; with deeds like thine, of robbery and murder, thy proper standard would be a dragon, a tiger, a wolf!”17 Erasmus echoes the position of Tertullian when he laments that “The Church ought to be kept perfectly pure, and . . . not be defiled with anything stained with blood.”18 His overall assessment is also similar to Seneca’s when he says “in war, there is a reward instead of punishment for murdering a brother . . . Is not the Turk a man, a brother?”19 Yet, unlike Seneca and Tertullian, there is attention given to the thousand years of arguments justifying war by those in the Just War tradition. It is this response to the Just War theorists by Erasmus that I will examine in this section. Erasmus says: There is scarcely any peace so unjust, but it is preferable upon the whole, to the justest war. Sit down, before you draw the sword, weigh every article, omit none, and compute the expense of blood as well as treasure which war requires, and the evils which of necessity it brings with it; and then at the bottom of the account whether, after the greatest success, there is likely to be a balance in your favor.20 16 17

Desiderius Erasmus, The Complaint of Peace (Querela Pacis) (1521), trans. T. Paynell (1802) (Chicago: Open Court, 1917), pp. 36–37. 18 Ibid., p. 55. 19 Ibid., p. 42. 20 Ibid., p. 44. Ibid., p. 39

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Here Erasmus shows that he is eager to engage with the Just War theorists of his day as he attempts to show that the Just War defenders are mistaken to think that there are many, if any, just wars. Erasmus focuses first on the idea that war can be justified because of its necessity and attempts to refute this often-cited argument of the Just War follower. They allege, that they are compelled to it; that they are dragged against their will to war. I answer them, deal fairly; pull off the mask; throw away all false colors, consult your own heart, and you will find that anger, ambition, and folly are the compulsory force that has dragged you to war, and not any necessity; unless indeed you call the insatiable cravings of a covetous mind, necessity.21

He disputes the idea that fault, disagreements, or differences among princes can be seen as the kind of occasion that makes going to war necessary. Erasmus points out that there are far better ways to resolve disputes and to compensate those who have been hurt by foreign rulers. “There are laws, there are sagacious men, there are worthy clergymen, there are right reverend bishops, by whose salutary advice all disagreements might be reconciled, and all disturbance checked at its origin. Why do kings not make these, instead of the sword, their umpires?”22 With so many other avenues for resolving disputes, the claim that war is justified by the condition of necessity rings hollow. For Just War adherents in the Middle Ages and the Renaissance, as is true today, the principle of just cause is a significant lynchpin of their position. For Erasmus, the only “bona fide” just wars are those that are “purely defensive.”23 Yet Erasmus expresses doubt that there are many, if any, purely defensive wars. He maintains that “On the contrary, men in our times, go out of their way to seek occasions of war.”24 And later in the text Erasmus takes up the claim that just wars are waged for the public good. “On the contrary, we see that almost all the real causes of wars are things that have no reference to the welfare of the public.”25 In another work, The Education of a Christian Prince, Erasmus also addresses the just cause condition of the Just War theory. Some princes deceive themselves that any war is certainly a just one and that they have a just cause for going to war. We will not attempt to discuss whether war is ever just; but who does not think his own cause just? Among such great and changing vicissitudes of human events, among so many treaties and agreements which are now entered into, now rescinded, who can lack a pretext – if there is any real excuse – for going to war? . . . Finally, if any one will investigate the matter more carefully, he will find that no one has approved the kind of wars in which we are now commonly involved.26 21 26

22 Ibid., p. 44. 23 Ibid., p. 54. 24 Ibid., p. 56. 25 Ibid., p. 70. Ibid., p. 43. Desiderius Erasmus, The Education of a Christian Prince (1516), trans. Lester K. Born (New York: Octagon Books, 1963), p. 251.

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Notice here, something I will discuss at greater length later in this chapter, that Erasmus does not condemn all wars but merely those at his historical time. In other places Erasmus seems to condemn all wars, but this is not his consistent position, leaving open the possibility that Erasmus might best be considered a contingent pacifist rather than a traditional pacifist. Erasmus spends his greatest efforts in dealing with what the Just War adherents called proportionality, which can be roughly and incompletely stated: war is justified when the expected gains are greater than the costs of war.27 He illustrates the grave harms of war that must be outweighed if the principle of proportionality is to be satisfied: “The largest part of the evil falls upon landowners, husbandmen, tradesmen, manufacturers, whom, perhaps the war does not in the least concern, and who never furnished the slightest cause for a national rupture.”28 Erasmus suggests that a truly just war would make sure that the costs of war are borne by those who benefit from war, and this means that it is the kings who should suffer – yet they never do. In addition, Erasmus often talks of the cost of war in terms of both the spilling of blood of those who are innocent and the loss of treasure that inevitably results from the costs of waging war. It can scarcely be purchased too dearly, if you take into account how much treasure you must inevitably expend in war; and what is of infinitely greater consequence than treasure, how many of the people’s lives you save by peace. Though the cost be great, yet war would certainly cost you more.29

When one tallies the “quantity of mischief and misery” of war, Erasmus argues that it is obvious that war cannot be justified on proportionality grounds. In considering the tactics and weaponry of war, Erasmus also confronts the Just War tradition in arguing that war is unjustified concerning its tactics and weaponry, just as it was from the standpoint of the decision to initiate war. In a letter he wrote to Anthony à Bergis in 1513, Erasmus says: Consider what crimes are committed under the pretense of war, while the voice of salutary law is compelled to be silent amidst a din of arms; what plunder, what sacrilege, what ravages, what other indecent transactions, which cannot for shame be enumerated. Such a taint of men’s morals cannot but continue its influence long after a war is terminated . . . by what standard can you appreciate the lives and the blood of so many thousand human creatures?30

Erasmus concludes by saying: “no war whatever did, at any time, succeed so fortunately as not to produce more loss than gain, more evil than good.”31 For 27 28 30 31

See Newton and May, Proportionality in International Law. 29 Ibid., p. 52. Erasmus, Education of a Christian Prince, p. 48. Desiderius Erasmus, “Letter to Anthony à Bergis” (1513), repr. in Peter Mayer (ed.), The Pacifist Conscience (Chicago: Henry Regnery, 1967), pp. 55–56. Ibid., p. 56.

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Erasmus, the conduct of war is not a “conduct worthy of a rational creature.”32 And this has been the assessment of many modern pacifist thinkers who follow in Erasmus’ footsteps. Even generally accepting the criteria of the Just War tradition, pacifists like Erasmus argue that war cannot be justified. It is clear that Erasmus is closer to being a Just War theorist than a pacifist on these tenets. But it is my view that Erasmus is a prime candidate for being a contingent pacifist instead of a Just War theorist.33 In the next two sections I will draw out the comparison between the two forms of pacifism, traditional and contingent, in Just War terms. IV

Criticisms of traditional pacifism

Contingent pacifism and traditional pacifism share much in common. When the writings of traditional pacifists are scrutinized, it often happens that their reasoning does not support their absolute pronouncements against all wars. As a result the position of traditional pacifists seems to leave the door open for some just wars, at least in principle. Both moral and pragmatic arguments of traditional pacifists focus on the specifics of past and current wars at the time that these traditional pacifists wrote. The traditional pacifists we surveyed above did not live long enough to experience the Second World War, the justifiability of which is often cited to show what is wrong with traditional absolute pacifism. One of the first things to note is that it is exceedingly hard to construct arguments against all wars considering that there have been, and may yet be, wars that are very different from wars at any given time. In respect to the justice of initiating war it is not argumentatively judicious to assume that all of the future will closely resemble the past, or that because there are many examples of claims of just cause that have not been proven, all wars will face a similar fate. What is needed is a pacifist view that is judicious and modest in its claims, but that builds on the strongly intuitive insights of the traditional pacifists we have just examined. In my view, contingent pacifism is such a view since it does not only hold that war cannot satisfy the just cause condition at any point in time. Contingent pacifism is a restrained pacifism, one that tries not to let its conclusions outrun the strength of the reasons it advances against war. Of course, there is no reason why traditional pacifists need to be seen as at odds with contingent pacifism. Indeed, some contemporary theorists who are associated with traditional pacifism do not flinch when they admit that some wars, at least presented as hypothetical cases, might be just wars.34 And so, like the porous border between contingent pacifism and Just War theory, there 32 33 34

Ibid., p. 59. See John Olin, “The Pacifism of Erasmus,” Thought, 50 (December 1975), 418–31. Cheyney Ryan is one such contemporary pacifist.

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is also a porous border between traditional and contingent pacifists, at least today. In general, it is my view that there is a continuum of views about the morality of war and hence that it is often difficult to distinguish the various positions from one another in terms of where they sit along this continuum. Nonetheless, Seneca fails to distinguish between those who have done wrong and those who have not. This is significant because if there has been clear aggression on the part of one State against another, it is not clear why the killing of the invading soldiers should be equated with murder on the part of the defending State. Here is where the Just War theorists were able to mount a significant criticism of traditional pacifists. Some wars seem to be justified because the killing on one party’s side is not at all wrongful and may even be morally required to protect the innocent citizens of that State. Seneca’s version of traditional pacifism, as with most, seems not to be able to deal with the plausible intuition that there might be cases where violent force should be able to be used to repel the violent force of wrongful invaders, when necessary. Traditional pacifism has generally not advanced the types of arguments that are capable of persuasively showing that all wars are morally wrong. But there are significant, and plausible, arguments given for why we should be highly suspicious of whether any given war can indeed be justified. The probability that any especially contemporary war will be unjust is very high and that this seems clear is a testament to the traditional pacifists’ arguments. Quite a lot can be learned from the pacifists we have surveyed in the current chapter, about what is plausible, and what could be more plausible yet, in defending pacifism. In the next chapter, I will mount a more direct defense of the idea of contingent pacifism. It is my view that many of the most plausible arguments have already been worked out over the centuries by traditional pacifists. But the scope and extent of those arguments need to be refined in a way that will provide support for a different kind of pacifism than that embraced explicitly by earlier pacifists. Tertullian, who managed to give voice to the historical Jesus’ views about shunning violence but whose approach is as subtle as Seneca’s, can also be faulted in a number of ways. First of all, the insistence on moral purity can be criticized for being self-centered in that it looks like a form of moral selfindulgence where one will choose not to help others so that one does not get one’s hands bloody. Politics is often messy. In order to accomplish good results, political and military leaders sometimes need to do things that dirty their hands. If these leaders were not willing to compromise and risk having blood on their hands, it may not be possible to bring about truly good results that would benefit the welfare of all. In addition, the emphasis on obeying only God and not the sovereign poses significant problems for any society that hopes to maintain order and solve various co-ordination problems. If each person feels that he or she is not subject

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to the law, but can decide to violate any law that is not supported in his or her conscience, then the prospects of social harmony are greatly diminished. Obeying the law, simply because it is the law and does not seem to be morally wrong, does not obviously show disrespect for God, or for the gods for that matter. I say much more about this problem in Chapters 10 and 11. There is in addition the criticism that Tertullian places more emphasis on symbolism than on matters of importance for people’s lives. Tertullian spends an enormous amount of time arguing that Christians should never do such things as accept laurel wreaths from their rulers or engage in pledges of allegiance to these rulers. These acts pale by comparison with the horrible acts of violence that most pacifists have focused their attention on. Symbolism is important in its own way, but Tertullian devotes such a disproportionate amount of time to symbolic acts that one is left wondering if these are more important than the real acts of war that he claims to care so much about. In the case of Erasmus, we find someone who has a position that is certainly more reasonable than the earlier traditional pacifists, especially since he feels the need to respond directly to the Just War adherents who had only arisen since Seneca and Tertullian wrote. Yet, Erasmus can also be criticized in various ways that will prove illuminating when we turn to a discussion of contingent pacifism. First, it is not always clear that Erasmus does defend traditional pacifism’s absolute rejection of war. When he discusses just causes, for instance, Erasmus says that many supposedly just causes are really only thinly veiled pretexts to go to war for less honorable reasons. But such an argument only shows that some, not all, wars are unjust. In addition, while Erasmus has compelling reasons to think that many if not most wars are impractical in terms of their costs, this is not necessarily true of all wars. Today, this calculation depends in part on how one values the lives of enemy soldiers who are in the wrong and have perhaps even forfeited their rights. And in any event, Erasmus opens the door to a case-by-case analysis of wars by focusing on the practical effects of war. One might agree that most wars are unlikely to satisfy proportionality in initiating war and yet still not find this a compelling reason to oppose all wars. Also, like most traditional pacifists, Erasmus does not properly appreciate what it means to have one’s country invaded. He is certainly right that too many rulers claim necessity when that is not the case. Yet he gives no reason to think that there are not or could not be cases of true necessity due to the aggressive invasion by one State of another peaceful State. Erasmus is at his most persuasive when he discusses what has counted as satisfying necessity over the years, but this analysis does not support the rejection of all wars on grounds of failing to satisfy the necessity condition. The criticisms I have mentioned would each need to be significantly elaborated before any of them would warrant us to reject traditional pacifism. But

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the sum total of these various faults and problems in traditional pacifist arguments seems to point toward a less absolutist form of pacifism. The arguments we have rehearsed seem to push toward pacifist conclusions but not in all cases. So, even some of the best-known adherents of traditional pacifism lead us to wonder about a different form of pacifism that does not reject all wars in principle. As we will see in subsequent chapters, the stage is set for thinking that pacifist arguments are plausible at least up to a certain point, if these arguments are qualified appropriately. V

Comparing Just War and traditional pacifist views

Let me now set out some of the tenets of traditional pacifism in Just War terms in order to make the contrast with contingent pacifism as clear as I can. In terms of the initiation of war, the first tenet of traditional pacifism is that there is no cause that would justify the massive killing that inevitably occurs in war. In terms of the conduct of war, the second tenet is that during war no military objectives are so important as to justify the killing, intentionally or unintentionally, of innocent people. In terms of the ending of war, there cannot be a war that advances a just peace among peoples that have no mutual respect for each other, as is normally the case during war. Some of the arguments of the traditional pacifists we have surveyed are at very least plausible, if not highly plausible. Nonetheless in this section I will offer various criticisms of some of these arguments and positions that have been advanced over the millennia. And I will draw on the most plausible of the arguments of traditional pacifism to motivate the discussion in Chapter 3 about the alternative to traditional pacifism that I am calling contingent pacifism. In some respects traditional pacifists and contingent pacifists have similar views. But in other respects, as we will see in this section, there are some stark contrasts between traditional and contingent pacifists. It is from Erasmus that we can learn the most about how a contingent pacifist position could gain initial support. As I said, Erasmus is very close to being a contingent pacifist already in that he sometimes presents arguments that would lead to the rejection of most, but not all, wars. And Erasmus is forthright in confronting the Just War adherents on their own grounds, namely on the grounds of necessity, just cause, and proportionality. Insofar as Erasmus seemingly leaves the door open for some war that would satisfy the conditions of being a just war, but denies that possibility in his day, he seems to be a model adherent of contingent pacifism. He is not quite actually an adherent of contingent pacifism since he seems to deny the possibility of a just war altogether at other points in his various writings. But this position does not appear to be a principled position. We can learn a lot from his arguments for the beginning of a plausible basis for contingent pacifism.

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Here necessity is perhaps the most important consideration for Erasmus. Throughout history, State leaders have claimed that they take their countries to war out of necessity, most often the necessity of defending their borders from invasion or preventing such invasions from being launched. There is much to be said in favor of this defense. Yet, in many cases it is simply not true that to defend a State war must be waged. In far too many cases, war is a first resort rather than a last resort. Until diplomacy has been exhausted it is very unclear how necessity can be employed as a rationale for going to war. I will devote Chapter 5 to providing the detailed argument in support of such a claim about necessity. In respect to the conditions for the conduct of war, there is a strongly intuitive appeal to Seneca’s idea that in the lead-up to war it is as if a madness captures the public mind, with jingoism, fevered patriotism, and all of the worst of the herd mentality characteristic of people who no longer think in the way they would otherwise approve. This madness is not as often seen today in the way that political and military leaders approach war as it was in the past. But this madness is often seen in the way citizens approach war. It is good to realize that what people say and how they reason in the lead-up to war is to be discounted because of the tendency of citizens to rush to support what their leaders have described as a war of necessity. And of course, many non-pacifists as well as pacifists have criticized various leaders for being mad in taking their countries to war. Consider one war that has recently been criticized heavily, even though it was once thought to be an example of Just War, namely World War I. Here we have an example of the kind of madness that Seneca mentions on the part of leaders who take their citizenry to war. As just one example of the many that could be cited, consider this account: On 6 December 1914, Enver left Constantinople and on 21 December took command of the Ottoman Third Army. He led the attack on the Caucasus plateau in person. The Russians were terrified and appealed to Britain to help somehow; they had no idea they faced a foe who was so utterly inept. Enver left his artillery behind because of the deep snow. His troops were forced to bivouac in the bitter cold (as low as minus thirty degrees Fahrenheit without tents). They ran short of food. An epidemic of typhus broke out. With routes blocked by the winter snows, they lost their way in the tangled mountain passes. Enver’s plan was for his forces to launch a coordinated surprise attack on the Russian base called Sarikamish, which blocked the invasion highway; but having lost touch with one another, the various Turkish corps arrived at different times at Sarikamish to attack and to be destroyed piecemeal. The remnants of what had once been an army straggled back into Eastern Turkey in January 1915. Of the perhaps 100,000 men who took part in the attack, 86 percent were lost. A German officer attached to the Ottoman General Staff described what happened to the Third Army by saying that it had suffered a disaster which for rapidity and completeness is without parallel in military history . . . Yet even as

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37

he rode back from the catastrophe in the northeast Enver ordered another ill-conceived offensive . . . Again the logistical problems were ignored.”35

This example is repeated in World War I, especially in the hundreds of thousands of lives that were lost in the trenches in France. Madness seems almost too weak a term for what the military leaders did during this war. Just cause has also been employed as a subterfuge or at best a pretense for going to war. It is often true that there are mixed motives for going to war. But if just cause is to be the basis for justification of initiating war it must be the main cause, not merely one of many causes of war. A century after Erasmus defended this view, Grotius took it up in much greater detail as he argued against positions like that of his contemporary Alberico Gentili that we must be suspicious of pretexts for going to war.36 And given that there are almost always mixed motives in going to war, the best position is to be suspicious when a political leader says that national defense is the only reason, or that national defense requires going to war right now. A Just War theorist could argue that it is not clear that many rulers today go to war out of bad motives. War is sometimes initiated from seemingly good motives, such as the patriotic worry that another State is trying to undermine the independence of one’s own State. Indeed, one of the problems with State leaders who initiate war is that they generally seem to do so, at least today, because they think it is the right thing to do. The problem is not often that these leaders act out of what they regard as bad motives, like anger or greed, but that they more often act out of good motives, or what they perceive to be good motives. Proportionality considerations have also often been misused to justify recourse to war. The practical objection to most wars can indeed be drawn in terms of the costs of war, especially the lives of the young soldiers who are asked to risk their lives for goals of uncertain value and of dubious likelihood of being accomplished. Indeed, as we will see, the lives of soldiers are often not taken as seriously as they should be in many Just War theorists’ proportionality assessments, making it far too easy to justify war merely by showing that collateral damage to civilians is minimized. I devote Chapter 4 to such proportionality concerns. Most wars have been disproportionate in terms of the goals of initiating war and even more in terms of the strategies and weapons employed during war. Erasmus focused on the crimes that are committed in nearly every war where not only has there been slaughter of the innocent civilians but also even more 35 36

David Fromkin, A Peace to End All Peace (New York: Henry Holt, 1989), pp. 120–21. See my discussion of this debate between Grotius and Gentili in May, Aggression and Crimes Against Peace, esp. chap. 4.

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slaughter of young men who have been forced into service. Winning a battle is seen as of paramount importance regardless of what is actually hoped to be accomplished by waging war. Proportionality requires an overarching assessment of the goals of the war, and also an assessment of each battle in terms of whether the value of winning the battle does indeed significantly advance the overall war effort. Nearly all wars have simply not met this condition, as Erasmus makes abundantly clear writing in the sixteenth century.37 And Seneca is indeed right to think that people fail to condemn, and even praise, conduct during war that they would quickly condemn outside of war. This is especially true of the widespread scale of intentional killing that occurs in most wars. Indeed, there is some evidence to suggest that killing of civilians has actually increased over the past century as modern war has developed.38 One of the most intuitively plausible aspects of traditional pacifism is that it tried to show that war inevitably involves the kind of intentional killing that is almost universally condemned, namely the killing of those who are innocent. In addition, if we focus on Seneca’s account of how soldiers are socialized to become killers we also can see what happens to the rest of us when exposed to the war culture. There are serious distortions of whatever counts as the truth concerning why States go to war during the run-up to war that need to be taken into account. As I will discuss at length in later chapters, there is a major problem with the justification of war if there is not as much attention and resources put into establishing a culture of diplomacy as there is into establishing a war culture. Such a consideration has led many, including myself, to worry about standard justifications for war and to think about alternative positions. Another type of argument focusing on the conduct of war that traditional pacifists often make concerns the killing during war. It seems that it is relatively easy to distinguish killing in war from simple murder. It is not merely, as Seneca seems to suggest, that killing in war is different in scale from simple murder, or that killing in war is merely murder that has been ordered by generals. Rather killing in war is seen to be necessary for such reasons as the defense of the nation from unjustified attack from other States. While killing in war is indeed the intentional taking of life, it would only be equivalent to murder if the killing was unjustified. So the issue is not that killing in war is like murder but that it is perceived to be as far from murder as one could imagine. From the perspective of some who participate in war it is perceived to be more like killing in self-defense than anything else, and killing of that sort is at least sometimes plausible and hardly something that can be easily assimilated to murder. Yet for others who have participated in combat, self-defense rarely is mentioned. 37 38

See Newton and May, Proportionality in International Law. See John Tirman, The Deaths of Others (New York: Oxford University Press, 2011). I also cite more evidence for this view in the next chapter.

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I would cite the well-known writings of J. Glenn Gray, discussed in the final chapter of this book, as an example. Another issue primarily concerns the ending of war, but also involves some considerations of how war is conducted. All pacifists care about what their conscience tells them is the right way to behave. Conscience, as we will see in subsequent chapters, especially Chapter 10, is not focused on consequences but on the quality of the action. Here it matters what one does as opposed to what others might do, or are doing. It does not matter that if I do not act someone else will act in my place. For conscience, what matters most is what I am associated with by my actions. The idea of taint thus arises as one of salient importance in that it is crucial that I not be associated with that which I judge to be wrong, regardless of the efficaciousness of my action. This is especially important for end-of-war issues such as reconciliation.39 Tertullian is right to think that purity and its opposite pollution or taint are key considerations when we decide to act. While it may be true that he took this consideration to its extreme, by insisting that any connection to civil authority makes one tainted, he was on the right track. In general, our characters are determined by the kind of things we are willing to do, and the kind of things we are unwilling to do, even in the face of strong public pressure, and even in terms of what consequences we can accomplish. Tertullian is one of the best-known traditional pacifists, especially given his uncompromising stance on all co-operation with civil authority. Given his stance, it might seem that his views would be anathema to compromise positions like those of contingent pacifists. But the feature of his views that I find most appealing is the idea of moral purity and taint. The ancient conceptions of responsibility are in some ways more demanding than those put forward today. I discuss such issues in Chapter 6. But in other respects, these views mesh well with the resurgence of interest in virtue theory. In this view, we must be concerned about the morality of our actions – not merely for what our actions cause but also for what our actions say about our characters. And this, as I will argue, is well within the moral orbit of contingent pacifism. VI

Pacifism today

In this last section, I will survey a few pacifist positions that are held by contemporary theorists. I begin with some theorists today who hold fairly traditional pacifist views. The philosophers who have been most associated with traditional but not necessarily absolute pacifism are Robert Holmes and Cheyney Ryan. 39

I return to the idea of taint and explore it in greater detail in Chapter 6, and say much more about jus post bellum in Chapter 9.

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Robert Holmes is clear that his pacifism is not “absolutist.”40 Holmes does not think that war is unjustified in all circumstances, no matter how fanciful. But he does argue strongly against modern war in nearly all of its manifestations. Given the presumption that killing innocent persons is wrong, the fact that war inevitably kills such persons means, in light of our argument that war can be neither just nor justified if the means necessary to waging it are not justified, that modern war is presumptively wrong.41

For Holmes, pacifism is about presumptions – changing the burden of proof. He associates his view with what pacifists have done over the centuries and is interested in showing that Just War theorists have not done an effective job in meeting the burden of proof, especially concerning the fact that all war involves the killing of the innocent. One noteworthy aspect of Holmes’s defense of pacifism concerns the distinction between killing and letting die. He frames the question at issue in a particularly clear way: When we ask about the comparative morality in wartime of allowing innocents to die as opposed to killing them, the question is whether we should kill some innocent persons so as not to let others die; whether we should alter the death-threatening conditions of some by ourselves killing others.42

He then argues that “no one has a right to be saved by others” but that “everyone has a right not to be harmed or killed by others.” If people had a general right to be saved by us, we would have to spend all of our time doing nothing but saving the “world’s poor and hungry,”43 and yet this would be absurd. But no such absurdity attaches to the right not to be harmed and the corresponding duty not to harm others. For Holmes, pacifism is right to condemn killing but not to condemn those who let others die. Cheyney Ryan can also be cited as having made major contributions to the defense of a form of pacifism that is close to that of the traditional pacifists we survey in this chapter.44 Like Holmes, Ryan does not think that wildly implausible hypothetical cases need to concern pacifists. And he begins by arguing that at its base, pacifism proceeds from a deep skepticism.45 Ryan’s positive argument proceeds on the basis of the deep “bonds of fellow creaturehood” where what the pacifist urges people to avoid is “objectification and distance” toward others that is necessary for one human being to kill another human being.46 Yet, Ryan is forthright in admitting that he does not have a conclusive argument for abstaining from killing, since in some cases it appears that killing is 40 42 44 45

41 Ibid., p. 189. Holmes, On War and Morality, p. 195. 43 Ibid., p. 210. Ibid., p. 209. Cheyney Ryan, “Self-Defense, Pacifism, and the Possibility of Killing,” Ethics, 93/3 (April 1983), 508–24. 46 Ibid., 522. Ibid., 519–520.

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indeed necessary to maintain relationships even as killing also demonstrates a disrespect for the one killed. Several philosophers have supported something like contingent pacifism, as I have used the term, by employing Just War criteria in a similar manner to what I will argue for later.47 Here two notable figures are Jenny Teichman and Andrew Fiala. I will explore some of their views before turning to my own views in the rest of this book. Teichman follows Just War theorists but finds that the criteria they offer support pacifism. Her position is summarized as follows: In the theory of the just war, the justice of means and methods is not a relative matter. An unjust method of warfare – for example, one that involves the killing of the innocent – is unjust per se . . . on any ordinary understanding of the terms innocent and guilty so many people will count as innocent that war itself turns out to be illicit and the just war theory collapses into pacifism.48

As we will see in Chapter 6, innocence is one of the keys in today’s most recent debates as well. Teichman then argues effectively that Just War theory is incapable at a certain level of rebutting this argument. If all soldiers on the morally right side are thereby innocent, then killing them is murder and on a par with killing children (say). Those on the morally wrong side who cannot know that their rulers are engaged in an unjust war are also innocent, and to kill them is murder and on a par with killing helpless old peasants, or priests, or nuns.49

She also presents the just war theorist with a dilemma. The slippery slope faced by the just war theorist is as follows. At the practical level, it is argued, he cannot tell whether or not the war which begins in apparent justice will be justly fought, nor can he tell in practice whether his ruler’s aims might not change with the passage of time. At the theoretical level he is faced with the dogma ‘he who wills the end wills the means.’ If he accepts that the aims of war can be just, he is forced to accept the needed means; but the means needed might turn out to involve terrorism (say).50

As will be clear later, I support many of Teichman’s arguments. One last philosopher to consider is Andrew Fiala, who approaches these issues from a pragmatist perspective,51 what he calls “practical pacifism,”52 which is a version of anti-war pacifism. 47

48 51

52

For earlier theorists who approached pacifism from a theological perspective using Just War criteria, see Johnson, “Two Kinds of Pacifism”; and John Yoder, When War is Unjust: Being Honest in Just War Thinking (Minneapolis, MN: Augsburg Press), 1984. 49 Ibid., p. 64. 50 Ibid., p. 89. Teichman, Pacifism and the Just War, p. 63. Also see Martin Benjamin, “Pacifism for Pragmatists,” Ethics, 83 (April 1973), 196–213; and Richard Werner, “Pragmatism for Pacifists,” Contemporary Pragmatism, 4/2 (December 2007), 93–115. Andrew Fiala, The Just War Myth (Lanham, MD: Rowman & Littlefield, 2008), p. 161. Also see Fiala, Practical Pacifism.

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For anti-war pacifism, the key point is that it is wrong to kill actual human beings who are innocent of any crime. But even if we accept that some humans can be killed – for example soldiers who consent to serve – a minimal version of anti-war pacifism can be derived from the idea that it is wrong to harm those who are innocent humans who end up being killed as collateral damage.

Fiala ends his discussion of contingent anti-war pacifism by saying that it is primarily a skeptical doctrine that significantly shifts the burden of proof. As will be clear, I am indebted to these recent pacifists and will follow them in significant ways. The discussion in the last two decades has brought many of these issues to the fore again, as a new generation of Just War theorists has tried to rebut pacifist arguments. The main thrust of the following chapters is to provide a relatively new set of arguments in favor of contingent pacifism, but arguments that will show a clear indebtedness to both traditional and contingent pacifists of the past.

3

The idea of contingent pacifism

Contingent pacifism is a relatively new term, but over the past centuries there have been some theorists, such as Erasmus, who have seemed to support this idea, as we saw in the previous chapter. There have also been recent theorists who call themselves Just War pacifists, conditional, or practical pacifists.1 These positions are all somewhat similar in that they attempt to sketch a view of pacifism that is different from traditional pacifism since it does not object to all wars in principle.2 The views differ from each other in terms of the reasons given to oppose nearly all wars. But it is my view that the various reasons can support quite a powerful position in defense of contingent pacifism. I will advance that argument in the chapters that follow the current one. At the moment I wish to spend some time setting out the idea of contingent pacifism, what initially motivates the idea, how the term contingent pacifism can be initially defined, and what its strengths and weaknesses appear to be, at least on first sight. One of the main issues I will discuss in this chapter is that, as it is increasingly seen today, soldiers do not have a moral license to kill other soldiers.3 Various theorists have argued that whether or not a soldier should go off to fight in war depends on whether a soldier fights on the just, as opposed to the unjust, side of a war.4 And in addition, whether a soldier is justified to use violence in the conduct of war depends on whether that killing is necessary and proportionate.5

1

2 3

4

5

See Fiala, Practical Pacifism. Also see Fiala, “Pacifism,” Stanford Online Encyclopedia of Philosophy, http://plato.stanford.edu/entries/pacifism; and Dustin Ells Howes, Toward a Credible Pacifism (Albany: State University of New York Press, 2009). See Duane Cady, “Backing into Pacifism,” Philosophy and Social Criticism, 10 (Winter 1984), 173–80. Richard Norman, “The Case for Pacifism,” Journal of Applied Philosophy, 5 (October 1988), 197–210; Soran Reader, “Cosmopolitan Pacifism,” Journal of Global Ethics, 3/1 (April 2007), 87–103; Soran Reader, “Making Pacifism Plausible,” Journal of Applied Philosophy, 17/2 (2000), 169–80. See Jeff McMahan, “The Ethics of Killing in War,” Ethics, 114/4 (2004), 693–733 (esp. 718– 29); Jonathan Quong, “Killing in Self-Defense,” Ethics, 119/3 (April 2009), 507–37; and Coady, Morality and Political Violence, esp. chap. 4, “Aggression, Defense, and Just Cause.” See Coady, Morality and Political Violence, chap. 9, “The Immunity of Combatants.”

43

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Finally, whether or not a soldier is justified to fight in a war depends on whether it is likely that a just peace will be the end of that war. Yet, it is very difficult for a soldier to tell whether or not the war he or she goes off to fight is a just war, even harder to tell whether a particular use of violence is both proportionate and necessary, and very difficult to tell if the war is likely to end in a just peace.6 Contingent pacifism begins with the idea that there is a presumption against going off to war and against using violence during war because of the risk that a soldier takes given how difficult it is in any given war to tell whether soldiers will be justified in serving in that war.7 In A Theory of Justice, John Rawls endorses contingent pacifism and links it to selective conscientious refusal: Indeed, the conduct and aims of states in waging war, especially large and powerful ones, are in some circumstances so likely to be unjust that one is forced to conclude that in the foreseeable future one must abjure military service altogether. So understood a form of contingent pacifism may be a perfectly reasonable position: the possibility of a just war is conceded but not under present circumstances. What is needed, then, is not a general pacifism but a discriminating conscientious refusal to engage in war in certain circumstances.8

I do not agree with all that Rawls says on this topic, but follow him in using the term contingent pacifism and also agree on some of the grounds of this form of pacifism. And I too link contingent pacifism to conscientious refusal, as will be evident in later chapters. In the first section of this chapter I will explain the practical considerations today that would motivate one to think seriously about contingent pacifism as an alternative to the Just War position. In the second section, I will explain what the elements of contingent pacifism are, seeking to define the term in a way that highlights its indebtedness to traditional versions of pacifism. In the third section I will explain some of the salient advantages of contingent pacifism. And in the fourth section I will say a bit about the potential problems of contingent pacifism and how one could begin to rebut them. I

Defining contingent pacifism

Contingent pacifism is hard to define as a simple doctrine because it has so many aspects that cannot easily be assimilated into one simple statement. Nonetheless, I will begin this section with a first approximation. Contingent pacifism, as I will use the term in this book, is the doctrine that armed conflict and war is in principle justifiable but that it is unjustified now and into the 6 7 8

See Richard Burke, “Epistemological Pacifism,” in Kenneth Klein (ed.), In the Interest of Peace (Wolfeboro: Longwood, 1990). See Seth Lazar, “Responsibility, Risk, and Killing in Self-Defense,” Ethics, 119/4 (July 2009), 699–728. Rawls, A Theory of Justice, pp. 381–82.

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foreseeable future, and in the past it is highly unlikely that wars have been just wars either. The principal reasons in support of this doctrine that I believe make the most sense concern the risk of civilian casualties and suffering and also the risk of combatant casualties and suffering. Here we can see several elements of contingent pacifism that I will elaborate in this section: (a) the admission that war or armed conflict is in principle justifiable, (b) the condemnation of war or armed conflict today, (c) the condemnation of war or armed conflict into the foreseeable future, and (d) the claim that it is highly unlikely that any wars in the past were just wars. The main feature of contingent pacifism that distinguishes it from traditional pacifism is the contingent pacifist’s admission that some wars could be justified. World War II is often cited as the classic example of a just war. Contingent pacifists can admit that World War II might have been a just war, and yet maintain that today it is so highly unlikely that such a war will arise that pacifism is the better position to take. And in addition, the contingent pacifist can admit that there might be a war in the distant future that could, perhaps like World War II, be a just war. Later in this chapter I will revisit the question of whether such admissions are inconsistent with a view being called “pacifist.” Before leaving this point it might be worth mentioning that a contingent pacifist would also raise questions about whether World War II was an unproblematic case of a just war. The tactics that were employed, which included the fire-bombing of major cities such as Tokyo and Dresden, as well as the use of the atomic bomb in Hiroshima and Nagasaki, where killing was indiscriminate, clearly violated norms of conduct during war. And even the reasons for why the war was initiated are not wholly unproblematic since at the time of the entry into the war by many States the Nazi genocide was not well known and the aggression of Germany and Japan was often matched by that of the Soviet Union and even China. As with nearly all wars, there is a tendency to ignore the moral problems with initiating and waging the war if after the war ends the results of the war seem to be morally good. The contingent pacifist asks that war be assessed with a clear eye concerning all stages of the war. What makes a contingent pacifism “contingent” is that certain facts that could be otherwise than they are affect the judgments of war being unjustifiable. If those situations or conditions that gave rise to these facts did not obtain, then the contingent pacifist would not necessarily be opposed to those wars. And it is possible for contingent pacifists to agree with the paradigm hypothetical case of a just war, and still remain a contingent pacifist as long as the hypothetical case is merely hypothetical. In part, this is because contingent pacifism is not an absolutist doctrine.9 The contingent pacifist, as we will see in subsequent chapters, does hold to several important moral principles, but in certain 9

See Emily Crookston, “Strict Just War Theory and Conditional Pacifism,” Proceedings of the American Catholic Philosophical Association, 79 (2005), 73–84.

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situations and under certain conditions those principles can be overridden by other factors if the facts change. But the contingent pacifist thinks he or she has good reason to believe that these facts are highly unlikely to change. The second element of contingent pacifism is that war or armed conflict is seen as unjustifiable today. As I will indicate in a later section of this chapter, there are at least six major facts about war and armed conflict today that make it the case that war or armed conflict is unjustifiable. Again, what makes the view contingent is that these facts could change in the future, and if the facts change war or armed conflict could be justifiable. The operant term here is “could” be justifiable. The opposition to war could be lifted in the future, or it might not be. It all depends on the contingencies of situations and conditions at the time the war or armed conflict is being considered. Contingent pacifists employ similar criteria for what makes a war just to the criteria used in the Just War tradition. As I said earlier, there will be disagreements about how best to understand necessity and proportionality as well as innocence and complicity, as we will see in great detail later. But as with the Just War theorist, the idea that war must be initiated and fought only when it is necessary and proportionate to legitimate military objectives is very important. And the requirement that civilians not be targeted or subjected to tactics and weaponry that is indiscriminate in its killing is also very important. The contingent pacifist is especially interested in how many resources, and how much time and effort, are devoted to military budgets as opposed to diplomatic budgets in determining if States have indeed engaged in military actions as a last resort. It is entirely possible that contingent pacifists will employ reasons in determining the justifiability of particular wars that will somewhat resemble the reasons of Just War adherents. But the judgments and conclusions based on those reasons will differ in most cases. For instance, the version of contingent pacifism I endorse puts a lot of weight on the justice of ending war, whereas Just War theorists in the past and present rarely put much weight on such considerations.10 If contingencies change in the distant future, the contingent pacifist may so closely resemble the Just War adherent as to make the public articulation of the contingent pacifist’s position less important than it is today. Perhaps the contingent pacifist only has a major role to play in those times when, even on amended Just War criteria, war or armed conflict seem not to be justifiable. But it still seems to me that there is an important role for the contingent pacifist who considers other criteria than the Just War ones even though 10

Jeff McMahan has provided quite subtle analyses of just cause at the initiation of war as well as of proportionality and necessity concerning the conduct of war, but has not explored in the same kind of detail the importance of moral considerations of war’s end. See Jeff McMahan, “Just Cause for War,” Ethics and International Affairs, 19/3 (2005), 1–21; and McMahan, Killing in War. For a full treatment of moral issues concerning the ending of war, see May, After War Ends.

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there is enormous overlap between Just War criteria and contingent pacifist’s justifying principles. The third element of contingent pacifism involves a prediction that into the foreseeable future there will not be wars that are justifiable. This is one of the hardest parts of the contingent pacifist’s brief to defend. But like the other aspects of contingent pacifism this third element depends on an assessment of the facts as we have them and the likelihood that the foreseeable future will to a large extent resemble the current facts. As with any prediction, this part of the contingent pacifist position has to be susceptible to changes in the facts. In this sense, contingent pacifism must not become a de facto condemnation of all wars or else the epistemic premises of contingent pacifism, that stress reasonable skepticism, are called into question. And insofar as contingent pacifism rests on a prediction that may turn out not to be borne out, it differs significantly from traditional absolute pacifism, in this sense making contingent pacifism closer to Just War theory than to traditional pacifism. One of the most significant facts is that the current development of geopolitical relations seems to favor the recourse to war over the recourse to diplomacy. The budgets that States have for diplomacy are not equivalent, or anywhere close, to the budgets for the military. And not only is this true but it is also the case that there has been a sharp increase in armed conflict that is not conducted between two sovereign States.11 Another significant fact is the clear upward trajectory concerning the conditions that have given rise to increasing risk to civilians during war and armed conflict. And yet a further significant fact is that we have failed to realize the promise of the United Nations that war as we had known it would diminish to the vanishing point. If the promise of the UN were to become reality, war would come to resemble police actions.12 In international law, for there to be justified wars, those wars are supposed to be either wars of national self-defense against the aggression of another State, or those that were authorized by the United Nations. And as we will later see in much more detail, even wars of self-defense were only supposed to be conducted unilaterally until the United Nations was prepared to act. Yet, despite the fact that nearly every State signed on to the UN Charter, this promise has not been realized. What was supposed to have changed with the founding of the UN was that States would no longer feel that they were free to make unilateral decisions to wage war. The fourth element of contingent pacifism is that it is highly unlikely that past wars were just wars. This is also a highly contentious claim, but it is one that calls for an analysis of what we know of those past wars, as well as what it was likely that people knew at the time these wars were waged. Once again, the 11 12

See Michael Gross, Moral Dilemmas of Modern War (Cambridge University Press, 2010). I thank Gabriella Blum for this point.

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justice considerations at the end of war are a key consideration that Just War theorists often fail to take as seriously as they should. A contingent pacifist could be influenced by a change in the world order so that wars only existed insofar as they were authorized by the world community through the auspices of the UN – as was the original intent of those who drafted the UN Charter. And of course, this may indeed happen in the future, even though it is not happening now. But the prospects for this happening in the near future seem remote at best. And of course, if the UN promise were to be realized, war as we know it would change so radically as to be virtually unrecognizable and perhaps also not truly to be labeled “war.” For these reasons the contingent pacifist feels justified in thinking that war will be unjustified into the foreseeable future. And this then grounds the claim that pacifism is the best attitude to take. We will later explore this claim in greater detail as well. Finally, the evidence for my version of contingent pacifism to be discussed in later sections makes reference to concern for the killing of both civilians and soldiers that inevitably happens during war. The concern for civilian deaths is consistent with the strong emphasis on avoiding civilian casualties in the Just War tradition. But contingent pacifists diverge from many Just War theorists in thinking that the lives and rights of soldiers matter nearly as much as well.13 Soldiers who serve in just as well as unjust wars have rights that should not be dismissed. And such considerations are especially significant when we discuss humanitarian war, the type of war now often thought to be paradigmatically just. The death of a soldier is the death of a fellow human and should count heavily in any calculation about whether a given war is justified, perhaps as heavily as the death of a civilian.14 This dimension of the contingent pacifist’s brief will be seen to give it added plausibility given that Just War theorists also claim to be working within a human rights framework today. II

The promise of contingent pacifism

There are five arguments for contingent or conditional pacifism that I will explore in later chapters, mostly beginning within, but then diverging from, the Just War theory’s framework – each of these views will have several chapters later in the book devoted to them. The first argument is an epistemic argument, where the inability to discern whether wars do indeed satisfy the conditions 13

14

A notable recent exception to this claim is Coady, Morality and Political Violence, chap. 9, “The Immunities of Combatants.” Jeff McMahan and some other so-called revisionist Just War theorists have expressed support for the lives of soldiers but primarily those who fight on the just side of a war. See McMahan’s treatment of wide proportionality in Killing in War. See Larry May, “Conflicting Responsibilities to Protect Human Rights,” in David Reidy and Cindy Holder (eds.), Human Rights: The Hard Questions (Cambridge University Press, 2013), pp. 347–61.

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for the initiation and conduct of war leads to a reluctance to support any wars since they may not be justified. The second argument is grounded in a concern for the lives and rights of those who fight in war, seeing the loss of their lives as rarely if ever justified by the goals of the wars they are asked to fight. The third argument is derived from arguments advanced by international legal theorists concerning international human rights as they have come to intrude into international humanitarian law. The fourth argument is drawn from recent developments in understanding the third branch of Just War theory, the justice of ending war. The fifth argument is conscience-based in that it does not see wars as unjust for all participants but instead recognizes that the State should make allowances to exempt a particular person from participation in war. In this section I wish to say how contingent pacifism, by focusing on such issues, allows us to overcome some of the main problems with traditional pacifism. First, contingent pacifism does not run farther than the arguments it can mount in defense of pacifism. It relies on the initial epistemic uncertainty of whether a given war is indeed a just war as an opening to argue that one should be predisposed not to participate in war. As I pointed out in the last chapter, some traditional pacifists tried to support the absolute rejection of war on the basis of a consideration of then current practices of war. Tertullian and Seneca spend an enormous amount of time discussing the Roman practices of their day. By doing so, these traditional pacifists at least give the appearance that their strong conclusions against all wars are not well supported by their arguments. Contingent pacifists, who also rely strongly on the circumstances of their times, try to avoid the traditional pacifists’ problem by not advancing arguments against all wars but only against wars at their own time. In addition, Tertullian and Erasmus are addressing themselves to Christians and the tenets of their religion, and yet attempting to draw conclusions for more people than just the Christians who are their primary addressees. It is also characteristic of the Just War tradition that most of its historical adherents marshaled arguments in terms of Christian beliefs. Grotius was one of the first to try to survey the world’s religious views about war, such as he knew them to be, rather than to focus exclusively on Christian beliefs. Yet, even Grotius, often thought to be the father of the secular Just War tradition, still spends most of his time discussing Christian views. Contingent pacifists are largely secular theorists who do not work from the perspective of the tenets of a major religion. Even so, they are careful not to assume that their secular arguments will be acceptable at all times and for all peoples. In this sense, epistemic modesty is a characteristic feature of contingent pacifism that distinguishes it from traditional pacifism. The second argument for contingent pacifism is grounded in a concern for the lives and rights of those who are most likely to be affected by war and armed conflict. Traditional pacifism, like traditional Just War theory, certainly takes account of the rights of civilians and other noncombatants. But the lives

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and rights of soldiers and other combatants has not often received the same attention. Indeed, the recent debates have focused almost exclusively on what is called collateral damage, the likely adverse effects of war on civilians. Some very recent Just War theorists have talked about the lives of soldiers, especially the soldiers who fight on the just side of a war or who are one’s own comrades. But the sticking point has been the lives of enemy soldiers, especially if they are thought to fight on the unjust side of a war.15 As we will see, the version of contingent pacifism I will consider in this book puts special weight on the lives and rights of soldiers and other combatants. In this respect I aim to correct what has seemed to me to be the overlooking of the rights of soldiers by traditional pacifists. Of course, if we go back far enough historically the idea of rights was not often discussed. But even for some traditional pacifists of the modern age there is sometimes an aligning with Just War theorists in thinking that all soldiers have forfeited (or waived) their rights when they enter into battle, or even when they merely wear a military uniform. And it is only the lives of civilians that are considered to be innocent and in need of defense from the horrors of war. Just War theorists have often responded to traditional pacifists that some wars can be defended because they prevent greater loss of civilian life than if those wars were not fought, such as in cases of wars fought to stop a genocide. Yet, if we focus on the lives of soldiers it is not so obvious that wars to stop a genocide will always prevent more killing of the innocent than is risked. Indeed, it seems to me that when countries ask their young adults and teenagers to go to a distant land to aid those who are innocent it is not often realized that the soldiers sent overseas are also innocent in several important senses of that term, as we will see in much greater detail later. The third argument is the legal analogue of the largely moral argument of the previous paragraphs. Traditional humanitarian legal theory has also focused almost exclusively on protecting civilians and only worried about soldiers in terms of minimizing their suffering. The killing of soldiers during war has always been seen to be relatively unproblematic in traditional humanitarian law. With the rise of human rights law, where all people are thought to have the same rights qua being human, especially the right to life, things seem to be changing. As we will see, some of the proponents of the intrusion of international human rights law into armed conflict settings, have recognized that pacifism must again be seriously considered. Some human rights law theorists, one might say, do not blink at the prospect that a full defense of human rights would lead to some form of pacifism. And 15

An important exception here is Coady, Morality and Political Violence, chap. 9, “The Immunities of Combatants.” It is of interest that Coady sees his Just War position as close to being a pacifist position.

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in any event, the contingent pacifist of the sort I am considering has the advantage of adding a plausible set of considerations concerning people who appear in several relevant senses to be innocent and endangered by war and armed conflict. In this sense, contingent pacifism is clearly in line with the Universal Declaration of Human Rights and the growing volume of legal documents and opinions that support human rights for all. It is realized, though, that such considerations are not overriding in all cases since there may be wars that can be justified despite the abridgement of rights of soldiers and other combatants that these wars cause. The fourth set of reasons to favor contingent pacifism has to do with the endof-war considerations. It is curious that so few Just War theorists have focused on this branch of the Just War theory. It is also true that traditional pacifists rarely focused on the ending of war, as we saw in our survey of three prominent pacifists in the previous chapter. For me, reconciliation and reparations are the most significant principles of the justice of ending war for our considerations about pacifism. I will here give some brief comments about how the ending-of-war concerns intersect with the initiation and the conduct of war considerations. Before doing that I would note that today there are very good practical reasons to take the end-of-war considerations seriously. As just one example, counterinsurgency is now a major strategy in armed conflict. And one of the chief ways that counterinsurgency is effective is by winning the “hearts and minds” of the people who are living among the insurgents. Here not using tactics that antagonize the population is recognized by everyone as very important. The considerations about what makes the initiation of war justified need to take into account whether or not there is an exit strategy for the proposed war that would be consonant with a just and lasting peace. Here one of the chief considerations is whether or not the costs of the war, especially concerning rebuilding and reparations, will be able to be paid so that those who are the victims of war will not be embittered at war’s end. Wars that are fought for fairly minor just causes have been recognized as problematic in this respect at least since Francisco Vitoria writing in the sixteenth century. Similarly, the considerations about what makes the prosecution of war justified need to take into account whether the tactics are likely to make reconciliation at the end of war impossible or unlikely. Tactics that result in the unnecessary suffering or deaths of insurgent fighters are classic examples that would make reconciliation at war’s end very difficult. Reprisals as well as draconian retributive treatment of soldiers or civilians also would exacerbate the situation at the end of war. And in any event, satisfying initiation and conduct of war conditions is not sufficient for satisfying the conditions of a just war. According to the contingent pacifist view that I support, ending-of-war considerations must be satisfied as well. I return to this important topic in Chapter 9.

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The fifth set of reasons in favor of contingent pacifism is grounded in considerations of conscience. Unlike the objection to fighting in war that is supported by traditional pacifism of the sort espoused by Quakers or Mennonites, contingent pacifism supports a selective refusal to fight in today’s wars or armed conflicts. Like the traditional pacifist, the contingent pacifist believes that the State should exempt from military service those who are conscientiously opposed to fighting in war. A liberal democratic society should respect those whose most heartfelt beliefs are opposed to serving in war or armed conflict. But, this does not mean that the State cannot expect some other form of service from those who object to military service on conscientious grounds. As in my own case, I favor alternative service requirements for those who object to military service.16 The contingent pacifist is not on firmer theoretical ground here than the traditional pacifist, but there is an advantage nonetheless. If the State can make a strong case for going to war, the contingent pacifist is bound to consider that case and not reject it outright. The advantage here is that the contingent pacifist demands that the State supply reasons for going to war that can be subjected to critical scrutiny and this encourages dialogue and transparency in the society. By contrast, the traditional pacifist will reject going to war regardless of what reasons the State advances. The State might then see no reason to debate why it sees this particular war as justified. This is not to deny that in some very few cases, secrecy about reasons for going to war might be justified. Again this is one of the contingencies that must be taken into account. The contingent pacifist is also able to explain how he or she might have supported serving in World War II and yet is opposed to serving in the Vietnam War for instance. Many find that serving in World War II cannot be reconciled with refusing to serve in a war without such a clear just cause. Yet, their consciences still prohibit them to fight in a war such as that in Vietnam. Contingent pacifism gives a framework for those who have held what otherwise seem to be positions that do not fit together. Traditional pacifists are not able to oppose merely the current war without necessarily opposing, say, World War II. This was the conundrum of many like myself who opposed the Vietnam War but were uncertain what to say about World War II. Contingent pacifism is able to capture this sentiment which in my experience is widespread. In this section, I have tried to explain some of the salient advantages of the contingent pacifist position by contrasting it with the traditional pacifist position. We have seen that contingent pacifism is better able to assimilate the changing facts as we know them, and the possibility that geopolitical facts 16

See Cecile Fabre, Cosmopolitan War (Oxford University Press, 2012), pp. 260–61, who argues against conscientious objectors on grounds that they end up as free riders since they still benefit from their fellow citizens who serve in the military. I am grateful for Saba Bazargan for discussion of this point.

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might change again in the future. Contingent pacifism can support the lives and rights of soldiers rather than seem to be a doctrine that is anti-soldier in orientation. Contingent pacifism can mesh with the major changes in international law in the last half century and especially the turn toward human rights law as opposed to traditional humanitarian law. And contingent pacifism provides reasons that support the sentiments of many young people considering participating in war, namely that it matters what are the actual circumstances of this war as opposed to other wars. I next address some of the most important practical considerations that lend support to contingent pacifism before then addressing worries that theorists have expressed about the emerging view of contingent pacifism I have been sketching. III

Some practical considerations favoring contingent pacifism

In this section I will say much more about the four practical points that collectively support a contingent pacifist position today. The first practical consideration is about the justice of initiating war and has not arisen recently but has been growing in importance in recent times, namely: (a) the fact that war will not be likely to be waged as a last resort. Specifically, I would focus on the large gap in amount of effort and money spent on armaments rather than diplomacy to solve geopolitical problems. As Erasmus argued so persuasively, the Just War condition of last resort is not satisfied unless other reasonable options have been exhausted short of going to war. Yet, today States often seem to use war or armed conflict as a first rather than a last resort. The budgets of States like the United States are skewed quite significantly in favor of military solutions to the nation’s problems, not in favor of diplomatic solutions. In 2013 the US Defense Department’s budget was 600 billion dollars, whereas the US State Department’s budget was only 51 billion dollars. Of course, the sheer amount of dollars spent on one strategy instead of another does not necessarily mean that the one getting the most resources is the one leaders turn to first. But once States have spent huge amounts on military weaponry, there is often political pressure to use these weapons – they are seen by some as sunk costs that cannot be retrieved in any other way than by using them before they become obsolete, or so it often seems. The costs of diplomacy are almost exclusively in salaries of diplomats and support personnel rather than sophisticated technological equipment. And the technology becomes obsolete nearly as soon as it is ready for day-to-day use, requiring another set of expenses to pay for the planning of the next generation of ever more sophisticated weaponry. Diplomats may need retraining occasionally, but there are no major industries that see their future profitability rise or fall on whether diplomats get better language training. The pressure to use

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military as opposed to diplomatic efforts to solve crises seems to be increasing, thus calling into question whether the use of armed conflict is truly a last resort. The second point is actually a cluster of considerations about the most significant conduct-of-war conditions: (b) the fact that proportionality and distinction (or discrimination) conditions will not likely be satisfied. Concerning proportionality one of the most important practical considerations is the difficulty in determining who is a combatant and who is a civilian in wars increasingly not fought between States. The problem today is that combatants cannot be easily identified merely by looking to those who wear distinctive military uniforms.17 Most wars that are ongoing at the time that I write this do not involve regular armies on both sides. Indeed, one leading authority on these matters, Claus Kress, has said: “It is common knowledge that the vast majority of armed conflicts since 1945 have been non-international in nature.”18 Irregular armies, involving so-called insurgents, terrorists, resistance fighters, etc., do not normally wear uniforms.19 In addition, it is not possible to determine all of those who are combatants by looking to see who carries arms openly. The wars and armed conflicts in the early part of the twenty-first century are conducted by forces that are able to succeed only insofar as they can quickly blend back into the general population, in order to “hide.” Carrying arms openly would defeat this strategy from the beginning. Indeed, hiding weapons caches is vital to any insurgency campaign that faces a much better organized and equipped standing military. And also today it is difficult to tell who is a combatant by looking to see who follows a rigorous and public chain of command. Here the problem of terrorists and insurgents is especially acute since the successful carrying out of their missions depends to a very large extent on being secretive, and even on only following orders from leaders of one’s cell, not those who are generally in charge. Al Qaida has been especially successful at decentralizing its command structure to the point where a cell of fighters does not have contact with the leadership for years on end. Indeed, Alex Bellamy has said: “Even excluding the 1994 Rwandan genocide, average [civilian] lethality reached its peak in the 1990s and declined slightly thereafter but has settled in the early twenty-first century at a level significantly higher than that of the 1950s and 1960s.”20 Because it is so difficult to identify who is a combatant, the proportionality condition as 17 18 19 20

See Christopher Kutz, “The Difference Uniforms Make: Collective Violence in Criminal Law and War,” Philosophy and Public Affairs, 33 (2005), 148–80. See Claus Kress’s review of four books on recent developments in jus in bello in British Yearbook of International Law, 83 (2013), 1–15. See Gross, Moral Dilemmas of Modern War. Alex J. Bellamy, Massacres and Morality: Mass Atrocities in an Age of Civilian Immunity (Oxford University Press, 2012).

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well as the humanitarian laws of war more generally are increasingly hard to apply successfully, with the result that wars today will risk killing civilians and other noncombatants even though soldiers try to avoid this result. Another proportionality concern that motivates the contingent pacifist is related to a concern about the risks to innocent civilians in today’s wars and armed conflicts, namely the use of artillery and war planes that strike from far away and increase risks to civilian populations. The most obvious contemporary problem in this set of practical worries concerns the use of drones and guided missiles that are controlled very far away from their targets. It might appear as if drones that can be precisely targeted will diminish the risk to civilians. But this does not seem to be the case. Of course, at the moment this may be due to the newness of the technology involved in drones. There is also a risk from the use of war planes that fly increasingly higher in the sky so as to make detection and interception harder for ground forces.21 The worry is that civilians will be put more at risk so that the lives of pilots and crew are made more secure. Again, some of this may be due to technological problems that could be solved in the future – as targeting becomes more sophisticated and accurate. Such predictions have been made for many years, and yet the problem remains. A contingent pacifist can say that into the foreseeable future this will remain a problem that cautions against armed conflict, even as the contingent pacifist can admit that things may be different eventually. Another practical concern about proportionality that motivates contingent pacifists once again relates to innocent civilians, namely the increasingly large percentage of noncombatants, compared to combatants, who are killed in modern armed conflicts. This particular point derives to a large extent from the previous points. While there is some disagreement about this point, even those who dissent recognize that wars have gotten more lethal for civilians throughout the twentieth century and into the current time. In 2011, Steven Pinker published a best-selling account of violence, claiming that violence has been declining and is likely to continue to do so. Concerning civilian deaths from the violence of war, he cites a widely quoted statistic: “at the beginning of the 20th century 90% of war deaths were suffered by soldiers and 10% by civilians, but by the end of the century these proportions had reversed.”22 Given his overall argument for the decline of violence in the twentieth century, one would expect Pinker to try to refute this statistic. But instead, he only claims that the general statistic is overstated. He then contends that there have been recent decreases in civilian deaths during armed conflict 21 22

Some of the concerns that animate the contingent pacifist position could have occurred in earlier times, but what is relatively new to contemporary times is the combination of these concerns. Steven Pinker, The Better Angels of our Nature: Why Violence has Declined (New York: Penguin, 2011), p. 296.

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“in the past two decades or less.” So violence during war is a kind of outlier to his general claim that violent deaths have been significantly declining. Indeed, Pinker warns that the very recent evidence of a decline in civilian deaths during war that he claims to have uncovered is worrisome since “we cannot count on them lasting.”23 So while there is some disagreement about this point among those who have studied the loss of lives in wars over the last century, the consensus seems to be that wars have been getting more rather than less dangerous for civilians over time, or if it is getting better since the turn of the current century there is no reason to think it will last. And this calls into question the principle of discrimination, or distinction, that requires that all precautions that are practical be taken so as not to risk the killing or injuring of civilians during armed conflict. The third practical consideration has to do with the ending of war, especially with reconciliation after war ends: (c) the fact that wars will not likely be ended justly in that increased antagonisms between parties will make reconciliation virtually impossible. Many armed conflicts involve insurgencies, and it is well known that insurgencies will be countered only if the population is not antagonized by the actions of one or another party to the armed conflict. Here is a brief account drawn from my joint-authored book on proportionality: At the end of a decade of coalition warfare in Afghanistan, the most frequent mission for Cdr. McDowell is simply to “overwatch,” which consists of scanning the ground via infrared sensors and radioing what he sees to troops below. Indeed, according to press reports, in 953 close-air support sorties by the 44 F/A- 18 Super Hornets aboard the aircraft carrier John C. Stennis aircraft attacked only 17 times, and flew low- or mid-elevation passes only 115 times. The shifts in missions and tactics partly reflect adaptations by the Taliban, but also the evolving rules of engagement that emphasize proportionality and restraint. Commenting on the need to be precise in target selection and for minimizing civilian casualties, Commander McDowell admitted that “So much has changed from when I was here the first time. Now I prefer not dropping – if I can accomplish the mission in other ways.”

McDowell might have never heard of end-of-war conditions for a just war, but the changing mission profiles and professional perspectives derive in part from their normative power.24 In addition, as armed conflict becomes more likely to involve an insurgency or a civil war rather than an inter-State war, it will also mean that battles will be fought for control of the major cities in the State or region, rather than fought on the frontiers of the State. This type of fighting dramatically increases the likelihood that civilians, especially children, will be at risk of being killed or 23

Ibid., p. 297.

24

Newton and May, Proportionality in International Law, pp. 79–80.

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seriously wounded. Uncontroversial statistics on civilian casualties are often hard to obtain, but many theorists today claim that there are increases in such casualties over time in the contemporary period.25 The fourth practical consideration has to do with a human rights concern for the death and suffering that combatants face as a result of war or armed conflict, namely: (d) the fact that it is unlikely that the human rights of soldiers will be protected, even in an age that has put human rights at the pinnacle of morality and law. This point is highly controversial as we will see in later chapters. But the initial idea seems quite commonsensical. Soldiers have human rights just like everyone else and so war, like any other institution or practice, needs to respect these human rights. Yet, it seems hard to see how wars could respect the human rights of those who are the combatants in those wars. This practical concern is not about changed situations and practices but about how those are assessed. The human rights movement is only a little more than half a century old and is only now beginning to criticize previously accepted rules of war. Today no one would say that soldiers are mere cannon fodder. Yet, in the past such statements went virtually unchallenged. The increasing concern for the rights of everyone means that war will have to be justified in terms of showing that the killing or wounding of young male and female combatants is worth it, where this also is understood in human rights terms. And such concerns seem to apply to each and every battle in armed conflict or war, making the prospects of a just war not good at all, at least as war and armed conflict is currently conceived and likely to be conceived into the foreseeable future. In the end, these practical concerns only increase the risk that wars at the present and into the foreseeable future will be unjust wars, or at least not worth the moral risk of fighting in them. Such considerations also affect our assessments of past wars in similar ways. These practical concerns shift the burden of argument to those who urge that certain wars are just. The burden shifting is not a conclusive argument against there being just wars. But for those who must decide whether to participate, or support, a given war or armed conflict, such considerations should weigh very heavily indeed. And at very least, as we will see in the final chapters, such considerations speak strongly in favor of affording people an exemption from military service if these people feel that they are conscience-bound not to fight in a given contemporary war. 25

See Reed M. Wood, Jacob D. Kathman, and Stephen E. Gent, “Armed Intervention and Civilian Victimization in Intrastate Conflicts,” Journal of Peace Research, 49/5 (September 2012), 647– 60; and Laia Balcells, “Rivalry and Revenge: Violence Against Civilians in Conventional Civil Wars,” International Studies Quarterly, 54/2 (2010), 291–313.

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IV

Worries about contingent pacifism

One of the first and most often expressed worries about contingent pacifism is that it will lead to more death and suffering as people become less inclined to stand up to ruthless political leaders who will invade and massacre at will. Augustine began the Just War tradition by arguing that some wars are needed to prevent the greater slaughter of the innocent. I have already begun to address this objection by reference to the lives and rights of soldiers. Here I will explain in a preliminary way why I do not regard this objection as one that should cause people to worry significantly about contingent pacifism. If there is a ruthless ruler who is either engaging in aggression against his or her neighboring States, or engaging in the oppression of her or his own citizens, the contingent pacifist can certainly oppose the tyrant initially by all means short of war. In addition, unlike the traditional pacifist, the contingent pacifist is open to the possibility of justifiably waging war against such a ruler. This is the strength of the contingent versus the traditional pacifist – the contingent pacifist leaves open the possibility of there being a just war, and in my view an aggressive ruler presents just the kind of case that the contingent pacifist should be open to regarding as a possible target of war. As I have indicated, the contingent pacifist thinks that all other means short of war must be exhausted before resort to war is employed, just as Just War adherents have often argued. The contingent pacifist also puts a premium on collective rather than unilateral military action, if military action is indeed the last resort to stopping an aggressive ruler. As I will argue in a later chapter, war should be initiated, if it is to be initiated legally at all, under the auspices of the United Nations. And such UN actions might look more like police actions than wars. But this of course leaves open the possibility that war could be initiated, and so the first worry is not nearly as great as one might have imagined. Yes it is true that the contingent pacifist will be much more reluctant to consider war as a means of resolving geopolitical problems than other means such as diplomacy. And yes, this may mean that some unscrupulous rulers will see this as a weakened position that can be exploited compared to the position of Just War theorists. Of course ruthless rulers may not be easy to deter no matter what position is taken concerning the resort to the massive violence that war epitomizes. But at least the contingent pacifist is not arguing as the traditional pacifist does that war should never be resorted to in such cases. The second worry is that contingent pacifism really is not a form of pacifism at all, but can be accommodated under the big tent of Just War theory. Indeed, some people call “just war pacifism” what I have been calling contingent pacifism in order to mark how the view is truly only a variation on Just War theory.26 26

See Sterba, “Reconciling Pacifists and Just War Theorists.”

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This is not an objection to what contingent pacifism stands for but a definitional issue. Nonetheless, it may seem to some to be deceptive to call a view “pacifist” even though it seems to be possible to assimilate it under the Just War rubric. And this may be more than just a labeling issue in that contingent pacifists may claim to have a distinctly new position when in fact it is just a very old position that is not any more relevant to current geopolitical issues than a Just War position. Augustine locates the idea of a just war as a kind of amendment to the pacifism of the early Church Fathers. He argues that sometimes the protection of the innocent requires going to war, but seemingly only in rare cases. So, the original Just War position and pacifism are not that far apart. In addition, today some Just War theorists defend so few wars that they admit that their position is also not that different from pacifism in its judgment of the justifiability of particular wars. Thus, it should be no surprise that a variant of pacifism that allows for the possibility of a just war would share in common many features with Just War theory. Nonetheless, prominent Just War adherents have distanced themselves from contingent pacifism.27 In part, the controversy is about whether there are wars today that are just wars; and in part it is a dispute about such issues as how important the distinction between killing and letting die is, or about how precisely to define necessity and proportionality. So, there does appear to be a significant enough difference between contemporary Just War theory and contingent pacifism not to worry too much about whether they are really parts of the same theory. In addition, on a personal note, I come to the discussion of contingent pacifism having spent most of my professional career as a self-confessed Just War adherent. My current thinking has moved away from a full-throated defense of Just Wars, and I have serious worries about Just War theory today. So, how close or far apart are contingent pacifism and Just War theory is for me a question of how we place two views on a continuum of views where there is quite a bit of similarity from one point compared to another. But how close two positions are is not the only factor in determining which one is most plausible or preferable. There is disagreement between some contemporary Just War adherents and contingent pacifists both about whether there are just wars and also about whether there are likely to be just wars in the foreseeable future. This dispute about the justice of initiating war can be divided between wars of aggression and wars of humanitarian intervention. Concerning wars of aggression, the 27

See McMahan, “Pacifism and Moral Theory”; and Fabre, Cosmopolitan War, p. 4. But also see Yitzhak Benbaji, “The Responsibility of Soldiers and the Ethics of Killing in War,” Philosophical Quarterly, 57/229 (October 2007), 558–72, arguing that contemporary revisionist Just War theorists are closer to pacifism than they admit.

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dispute is about whether tyrants in various parts of the world are indeed presenting such a threat to their neighbors that war should be contemplated in self-defense or defense of innocent others who cannot defend themselves. And one of the problems here is that internal dissent often turns into a full-fledged civil war where it is not clear which side a humanitarian intervention should support. Or even when it is clear which side supports tyranny and which side does not, it is also not clear in many cases whether outside military force is likely to succeed. Consider Iraq’s invasion of Kuwait in the early 1990s. Saddam Hussein was certainly a tyrant who threatened to invade his neighboring States and acted on these threats in the case of Kuwait. Arguably the world community tried employing diplomatic measures to try to contain Saddam’s bellicosity. Finding that diplomacy was not working, due especially to the invasion of Kuwait by Iraq, the United Nations authorized military action against Saddam to push his armies out of Kuwait and back into Iraq. This case is sometimes presented as a good example of a contemporary just war. Let me remark on how a contingent pacifist, as opposed to many Just War theorists, could regard this case and cases like it. The first thing to note is that the war against Iraq was not a traditional war between two States, but between one State and a coalition of States authorized by the United Nations to take very specific action, namely to expel Saddam’s armies from Kuwait and get them to return to Iraq. This war is indeed the kind that the contingent pacifist contemplates as being potentially a just war. But in this case, there is much more that needs to be investigated, especially whether all other reasonable non-military options were tried or contemplated and judged to be unlikely to succeed before resorting to war. We know now that after the war, economic sanctions crippled Iraq and made Saddam much less of a threat. Could the same have been true before the recourse to war? This is of course the nub of the problem in deciding whether the war against Iraq was a just war. My own research has not established that sanctions other than military ones were sufficiently employed to make the resort to war in the case of Iraq a last resort. Concerning various humanitarian crises such as genocide, many Just War adherents believe that war should be initiated in several situations today. War waged in defense of innocent others, as Augustine said, is more justifiable than war in self-defense, because the former is selfless. And if a war could indeed stop a humanitarian crisis from occurring or stop it early in its progress, such a war would seem to be a paradigm of a just war. This is just what Augustine envisioned where the loss of lives due to war was justified because of the prevention of the loss of lives of a greater number of innocents. Let us then consider the claim that a military invasion of Rwanda to stop its genocide would have been a just war in 1994. In a very short period of time, only several months, 750,000 people were killed by assailants primarily

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wielding machetes. As I have argued elsewhere, the problem is twofold. First, the genocide had to be predicted or discovered quickly enough for external military action to have done any good. While some social scientists and policymakers did predict the tragedy, most did not. Second, it is unclear what would have been needed militarily to stop the genocide. After the first several weeks, the military was not strongly implicated in the killings – rather most of the killing seems to have been carried out by neighbor against neighbor. To stop a massacre where one third of the population was killed by another third of the population while the remaining third stood by and did nothing would have required a massive influx of combatant boots on the ground. This fact means that there would likely have been quite a lot of combatant casualties, especially since heavy artillery and war planes could not be used because there were no military targets other than neighbors killing one another.28 Some have argued that the risk of casualties, both to soldiers and to civilians, from a military intervention into Rwanda was worth it given how many people were killed in the massacre.29 But unfortunately, this is largely reasoning from hindsight. At the time of the beginning of the massacre it was very hard to predict that so many people would eventually be killed and so quickly. And without such a reliable prediction it is not clear that initiating such a war would have been justified. In any event, military intervention into Rwanda is hardly a paradigm case of a just war in our contemporary times since the “war” would have been highly non-standard, again more like a police action than a war, and hard to generalize from. And it is my view that other humanitarian interventions face similar problems to the case of Rwanda. As to the foreseeable future, of course no one has a crystal ball. And there is quite a bit of room for disagreement about what things will look like in, say, thirty years or so. For one thing, I will almost surely be dead by then, but even this is very hard to predict because of the incredible speed with which medical technologies are extending human life. But the various factors I cited in the ealier part of this chapter certainly seem to point in the direction of geopolitical factors not changing much in that period of time. So, it seems to me that there is no good reason to think that diplomacy will be given any more of a chance of being the first resort than it currently is, into the foreseeable future. This point about the foreseeable future is another temporal consideration that separates many Just War adherents and contingent pacifists. The third worry about contingent pacifism is related to the previous worry in that it seems that people will be caused to take the easy path and not to risk 28 29

See my more detailed discussion of this point in Larry May, Genocide: A Normative Account (New York: Cambridge University Press, 2010). See Samantha Power, A Problem from Hell: America and the Age of Genocide (New York: Basic Books, 2002).

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going to the aid of others who are in distress. This is a worry that people will become morally self-indulgent by not wishing to risk getting blood on their hands. Rather we should be ready to go to the aid of those who are innocently suffering. Contingent pacifism, like traditional pacifism, seemingly gives the wrong advice to people about whether they should be ready to risk their lives for the sake of others. Yet it seems to me that those who currently support military action for humanitarian reasons are also risking the establishment of a dangerous precedent. One part of this worry is that contemporary States, which are already primed to respond militarily rather than diplomatically, partially because of the sheer differential in military versus diplomatic budgets, will become even more focused on lethal rather than non-lethal ways to respond to the problems of the world. The other part of the worry is that considering humanitarian wars to be the new paradigmatically justified wars risks allowing States a pass when they claim to be acting for humanitarian reasons. This is the worry expressed by Grotius that such a precedent will make it more likely that States will use humanitarian rationales as a pretext that can only be successfully disputed long after the fact, when it is not possible to stop a State from waging war on these false grounds.30 In any event, the contingent pacifist can work to stop humanitarian crises quite strongly but by less risky non-lethal means. Indeed, non-lethal sanctions can often be highly powerful and effective. Consider economic embargoes and even blockades. Throughout history these sanctions have been used and often have achieved their intended effects. Indeed, the threat of such sanctions has been very effective recently in getting States to co-operate with extraditing those to whom arrest warrants have been issued by international tribunals and courts – most famously leading Serbia to extradite Slobodan Milosevic, the former president of Serbia. The point is that being generally opposed to the recourse to war does not mean that one favors inaction in the face of tyrants or humanitarian crises. Indeed, the contingent pacifist can be just as much an activist against those who commit wrongdoing in the world as those who support war in such cases. In the next sections of the book I will now provide much more extensive arguments in support of the contingent pacifist position. 30

See Grotius, De Jure Belli ac Pacis, esp. p. 546.

Part II

Human Rights and the Just War

4

Proportionality, immunity, and human rights

In this chapter I will begin to explore the debate about how human rights should affect some of the main principles of the Just War tradition. I will argue that once the human rights turn has been made, it becomes easier to see the appeal of contingent pacifism. This argument will primarily involve considerations of proportionality and immunity in the conduct of war in this chapter, and considerations of necessity in the next chapter, as well as reassessing the idea of innocence in Chapter 6. The paradigmatic human right, the right to life, is hard to reconcile with killing during war. Indeed, if one did not know the recent literature, one would be inclined to think that respect for human rights would be in permanent tension with the very idea of waging war. Specifically, the idea of immunity and proportionality, the foci of this chapter, would have to be reconceived so that the lives of all soldiers were taken seriously. And if that were to occur, then contingent pacifism will become much more plausible because of how hard it will be for any war to satisfy soldier-oriented conditions of immunity and proportionality, as we will see in this chapter. I will proceed by first discussing the turn toward human rights in Just War theory. In the second section I will discuss immunity as it has been understood in the Just War tradition and some problems with this traditional characterization. In the third section I address proportionality in the Just War as well as how a revised understanding could support contingent pacifism. In the fourth section I shall discuss how best to understand the rights of civilians. In the fifth section, I will explain why a soldier runs the risk that what he or she thought was a just war is actually an unjust war, and hence that he or she is participating in an unjust war after all. Throughout, I will explain how I see revised principles of immunity and proportionality and doctrines such as collateral damage often used to justify some wars and their attendant killing today. I

Human rights and the Just War

Human rights considerations are at center stage in moral and political philosophy just as they are in international law today. In this book, I will not offer a full defense of that tradition, nor will I offer a fully developed critical 65

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perspective on the human rights approach. Rather, since one must start somewhere, and since even the fiercest critics of pacifism start by presuming the plausibility and coherence of the idea of human rights, I will begin with that position as well. Yet, as we will see, supporting human rights involves a complex set of considerations that do not tell immediately against pacifism but make pacifism, at least contingent pacifism, more plausible than if we do not begin by presuming the salience of human rights in our deliberations. The twentieth century saw a wave of support for the idea of human rights. The 1948 Universal Declaration of Human Rights epitomizes this movement and the respect which it is afforded in most of the world. As with the development of human rights in international law, political and moral philosophers have also embraced the idea of human rights – even those who had rejected the similar idea of natural rights that had been a powerful force since the end of the Middle Ages. Human rights were not supposed to be grounded in some kind of spooky metaphysics but were grounded in the fairly minimal normative idea that all humans were due at least a minimum of respect that meant that humans should not act in ways that harmed the interests of fellow humans, and in some cases should act in their benefit when such actions were not overly costly. Indeed, there is a rather potent consensus, or at least an overlapping consensus, that humans have basic rights merely by virtue of being human. This consensus is supported by the promise of benefits to the human race when all humans recognize the common humanity that we all share and when we act in at least limited support for each other.1 The philosophical tradition has often connected human rights to Immanuel Kant’s moral philosophy and generally to deontological or contract-based ethical theories that hold that some considerations cannot be outweighed by considerations of consequences. Here John Rawls’s work is most often linked to a human rights approach that posits justice as the cardinal virtue of political institutions. Humans, qua humans, are vulnerable in many ways. As H. L. A. Hart pointed out, if humans had hard shells, like some other creatures, they would not be so vulnerable to so many kinds of bodily injury.2 If humans had a stronger sense of smell, they would not be vulnerable to factors that cause impaired vision since they would be better able to compensate for loss of one sense by the use of another. Humans are also uniquely intentional creatures whose dignity, or worth, is largely associated with the higher mental faculties. The MerriamWebster Dictionary says this about dignity: “a way of appearing or behaving that suggests seriousness and self-control.” It is the self-control of the will 1

2

See Rex Martin, “Are Human Rights Universal?” in Holder and Reidy (eds.), Human Rights, pp. 59–75. Also see James Nickel, Making Sense of Human Rights, 2nd edn. (Oxford: Blackwell, 2007). Hart, Concept of Law.

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associated with humans, and paradigmatically so, that makes them uniquely vulnerable to factors that would impair the ability to exercise their intentional decision-making. Kant famously put the dignity of humans at the center of his moral philosophy. Here is a passage from his Metaphysics of Morals, Part II: But man as a person, i.e., as the subject of a morally-practical reason, is exalted above all price. For such a one (homo noumenon) he is not to be valued merely as a means to the ends of other people, or even to his own ends, but is to be prized as an end in himself. This is to say, he possesses dignity (an absolute inner worth) whereby he exacts the respect of all other rational beings in the world, can measure himself against each member of his species, and can esteem himself on a footing of equality with them. The humanity in one’s person is the object of the respect which he can require of every human being, but which he must not forfeit.3

For Kant, human dignity is the value of a human life as an end in itself. This value is premised on the idea that humans have a noumenal life, a certain kind of higher mental capacity including intentionality, which distinguishes humans from all other animals.4 Interestingly, Kant does recognize that a person can, to a certain extent, forfeit his or her dignity: primarily by not fulfilling his or her moral duties. And many of these duties are grounded in showing respect for other humans as themselves having dignity in their humanity. Kant says that he has in mind the person who attempts suicide. So, we should be reluctant to jump too quickly to conclusions about the case of a solider who takes up arms possibly forfeiting his or her rights. Indeed, there is no reason to think that Kant has in mind that a soldier forfeits his or her dignity, because it is not immediately evident what duty it is that the soldier violates. Indeed it is somewhat notorious that serving in the military is often associated with paradigmatically doing one’s duty, rather than failing to do one’s duty. To treat people with dignity is indeed to treat them as responsible agents. This means that we should not ignore the bad things that a person does, just as we should not ignore the good things that a person brings into the world. A society can punish a person and still respect that person’s dignity; and a society might even be able to execute a person and still respect that person’s dignity, if the means of execution minimizes suffering. It has sometimes been thought that it is sufficient in such cases that the society not make the person 3

4

Immanuel Kant, The Metaphysics of Morals, Part II: Metaphysical Principles of Virtue (1797), in Immanuel Kant’s Ethical Philosophy, trans. James W. Ellington (Indianapolis, IN: Hackett, 1983), p. 97. It should be noted that while I often appeal to Kant in this part of the text, I do so not because I am convinced that Kantianism is the best normative moral theory, but because Kant best captures the idea and importance of dignity, which itself has been crucial to contemporary debates about human rights as well as humanitarian considerations.

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suffer unnecessarily for the society to show that it still respects the person’s dignity. But a person’s capacity for suffering, while important, is not the source of that person’s dignity. From a Kantian perspective, and from other deontological perspectives, humanitarianism means more than not making people suffer unnecessarily – the right to life of the person also needs to be taken seriously. In the literature of the Just War, human rights have also had a large impact. In Michael Walzer’s very influential 1977 book, Just and Unjust Wars, he begins by saying that his account of the Just War will be thoroughly grounded in a human rights approach.5 And more recently, as just one other example, Jeff McMahan has also said that he will undertake to revise Just War theory, especially in the version espoused by Walzer, by defending the rights of those who fight on the just side of a war and showing that those who fight on the unjust side of a war violate the human rights of those who are on the just side.6 It is my view that the risks of killing those who have a right not to be killed is so great during war or armed conflict that soldiers and other combatants should not take the risk of fighting and should instead refuse to fight. They should urge their leaders to seek more peaceful ways to solve the world’s problems, even the problems of aggression that have been thought to be characteristic of the Just War tradition. In the earlier Just War tradition, the risk of killing the innocent was taken very seriously. Michael Walzer is right, though, that soldiers and other combatants were never classified as those who are innocent. So, the major worry became the killing of civilians, either directly or indirectly as a matter of collateral damage, for those who took human rights seriously. Once the lives of at least some combatants are considered innocent, in the sense that they are not liable to be attacked because they fight with a just cause, the risk of killing the innocent in war actually increases. Not only does one risk killing innocent civilians, but one also risks killing innocent soldiers. So, the recent Just War theory actually adds to the potential risks of fighting in wars and armed conflicts, as we will see, and should make it even riskier to fight than was true of the traditional Just War theory, epitomized by those who supported the non-innocence of all soldiers. In what follows in this chapter I will indicate the various ways that soldiers incur moral risks, paying special attention to how these risks have indeed increased if one follows recent work on human rights in the Just War. 5 6

Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977), p. xxii: “the morality I shall expound is in its philosophical form a doctrine of human rights.” McMahan says: “We must cease to regard them as mere instruments or automata and recognize that they are morally autonomous and therefore morally responsible agents. And we must insist that they too recognize their own moral autonomy and abandon the comforting fiction that all responsibility for acts they do in obedience to commands lies with those who command them” (Killing in War, p. 95).

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Human rights of course are not so important and weighty that they can never be overridden. Yet, the idea that potentially massive violations of human rights could occur in every war sets a very high bar for anyone who wishes to justify those wars today. Indeed, there are special considerations about today’s wars that will also increase these moral risks or hazards that soldiers and other combatants will run that are somewhat different from times past, and perhaps also different from times to come – hence my emphasis on contingent pacifism rather than absolute pacifism. Because human rights considerations can be overridden, in considering proportionality we will need to discuss in the end precisely what the likely gains of today’s wars and armed conflicts are. As we will see at various points in the next few chapters, there are indeed powerful arguments that can be offered in defense of some wars, but the concern for human rights is such that these wars are not uncontroversially just wars. It is certainly not enough to point to the fact that some of our own citizens’ lives will be saved by a given war, or even that those who are innocent in another part of the world will be saved, in order to justify killing lots of soldiers and other civilians. Especially in this latter case, as we will see at the end of this chapter, those of our own soldiers who are asked to fight in humanitarian wars retain their innocence and their rights will need to be assessed against the rights of those who are to be saved by the humanitarian intervention. This point about humanitarian wars is especially important today since many see these humanitarian wars as paradigmatically just wars that tell strongly against the position of the pacifist. As far back as Augustine, wars fought in defense of other peoples who are innocent was thought to be more justifiable even than wars of self-defense. Today, those who work in the field of transitional justice often claim that only wars of humanitarian intervention or rescue can be justified. Yet, these theorists rarely if ever take into account the lives of our own soldiers (or those of any other foreign State that is a legitimate democracy). If the lives of soldiers are taken seriously in human rights terms, as I shall argue they must be, then the paradigmatic just wars today are called into question and some version of pacifism comes back on the table as reasonable once again. The reader is reminded that the position defended in this chapter cannot be defeated merely by showing that the current situations may change and even change radically in the future. The contingent pacifist does not have to gaze too far into the future, or to consider examples that are drawn largely in hypothetical terms unlikely to be realized in the near future. Once again, this is one of the advantages of contingent pacifism over traditional absolute pacifism – the burden of the argument shifts significantly back to the defender of the idea of a just war, and such a shift, as we will see, is fueled by the very same human rights concerns that are supposed to undergird Just War theory today as well.

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II

Immunity and the Just War tradition

In the branch of Just War theory that deals with conduct and tactics during war, the rights of civilians have been protected by two principles. The first, the principle of immunity, requires that civilians should never be directly targeted. A distinction must be drawn between those who are civilians and those who are combatants, and military tactics can only be launched against those who are combatants. The second, the principle of proportionality, says among other things that when civilian lives are risked as an indirect effect of a military operation, the value of the military operation must be greater than the value of the risks to those civilians. In this section I will sketch how these principles were understood in the historical Just War tradition, before considering how a revised understanding of these principles could support contingent pacifism. Concerning immunity, the early seventeenth-century philosopher and theologian Francisco Suárez states the general view in terms of the prohibition on killing the innocent: “no one may be deprived of his life save for reason of his own guilt.”7 Suárez extended this category of people who are innocent to include those who carry weapons as long as “they have not shared in the crime nor in the unjust war.”8 Innocent people, including most civilians, were not to be killed through direct targeting. The idea that being free of guilt is the defining characteristic of those who are innocent is no longer the test for contemporary Just War theorists. But the idea that even some combatants could be included in the group of people who have immunity from attack is being explored once again in somewhat different terms. Of course, if large numbers of combatants are innocent and immune from attack it becomes hard to justify most wars. Hugo Grotius, also writing at the beginning of the seventeenth century, articulated a very strong and encompassing principle: “No action should be attempted whereby innocent persons may be threatened with destruction.”9 Even the risk of killing the innocent was a reason for the war to be considered unjust. Grotius was explicit that such a consideration made it very difficult to justify most wars. Indeed, toward the end of De Jure Belli ac Pacis he says: “No one may rightly be killed because of his ill fortune; for example those who take sides under compulsion.”10 This seems to say that conscripted soldiers cannot be killed, which certainly would rule out many wars today. Grotius also maintains that soldiers should be pardoned if “they have done wrong not from hatred or cruelty but moved by a sense of duty and righteous zeal.”11 From these accounts, the principle of civilian immunity grew up, or what is sometimes also called the principle of discrimination or distinction. The most 7 9

8 Ibid., p. 846. Suárez, “On War,” p. 845. 10 Ibid., p. 723. Grotius, De Jure Belli ac Pacis, p. 734.

11

Ibid., p. 730.

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important immunity consideration involves who should count as innocent. I will explore the concept of the innocent, especially in light of worries about complicity, in much more detail in Chapter 6. Here I wish to pursue the idea of immunity for some combatants, along with most civilians. One of the central questions I wish to press in this chapter is whether we can speak of the full immunity of civilians without extending such immunity to combatants in at least some cases. As I have just argued, central figures in the Just War tradition espoused this view – so what would make one think that this is not a good position today as well? To take a simple example, how is a civilian who is seriously thinking of enlisting in the army to be distinguished from a combatant who has decided to desert from the army? Who should be granted immunity from attack? If we focus on dangerousness or some other measure of the difference between civilians and combatants, it will be difficult to distinguish these cases. The easiest case concerns very young children. They are paradigmatically innocent. But as we move up the age ladder there will certainly be children who are dangerous in precisely the way normal soldiers are, in that they have weapons and carry out lethal orders. Indeed, in some ways “child soldiers” are some of the most dangerous combatants because they do not have normal inhibitions from cruelty, for instance.12 It appears that the only way to turn what is clearly a harm, and would otherwise also be a clear wrong, that is, killing innocent young children, into something that might be justified nonetheless is to see their deaths as collateral damage for fighting a just war. The children are still innocent but their deaths are said to be justified because of the greater good, also understood in human rights terms, done as a result of killing them, and where it is necessary to kill them. Indeed, in some just wars, there will also be children who are at risk if the war is not pursued. But leaving this issue aside for a moment I want to focus instead on the collateral damage question that is at the heart of proportionality assessments. Most of the discussion of collateral damage focuses on adults, if the people harmed are specifically described at all. One of the questions often asked concerns the possible complicity of these adults who are placed at risk by various tactical military decisions.13 Of course, the main issue is whether their deaths can be justified, or excused, if their assailants did not directly intend their harm 12 13

See Mark Drumbl, Reimagining Child Soldiers in International Law and Policy (Oxford University Press, 2012). I have written about complicity in various publications: see May, Genocide, chap. 9; and May, Sharing Responsibility (University of Chicago Press, 1992). Also see Christopher Kutz, Complicity (New York: Cambridge University Press, 2000); Chiara Lepora and Robert E. Goodin, On Complicity and Compromise (Oxford University Press, 2013); and Saba Bazargan, “Complicitous Liability in War,” Philosophical Studies, 165 (2013), 177–95.

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or death. But it seems to me that the background of the debate about collateral damage, and the related doctrine of double effect, is normally that we are talking about adults who are complicit in some sense by being in the wrong place at the wrong time, for instance. Indeed, many people who write on the topic of collateral damage refer to the possibility that the people harmed or killed might very well be non-innocent for all we know. These arguments typically proceed by reference to our intuitions. My intuition about collateral damage cases is deeply affected by contemplating the killing of young children as an unintended but necessary and foreseeable side effect of a military tactic.14 In the case of the My Lai massacre, for example, the defense was that even children had been used as combatants in that they carried weapons and sometimes fired them at American troops.15 If such children had been merely the victims of collateral damage, rather than directly targeted as they actually were, the fact that some children in the area had been combatants might have altered my intuitions about how I regarded their deaths. But if we are thinking of very young children – those who are often the ones killed during missile attacks – such a consideration as that of My Lai is not open to us, since very young children cannot carry weapons. But otherwise, collateral damage is to be assessed in terms of proportionality. Concerning proportionality, Grotius stated one version of the concern with this principle when he talked of “reasons that are weighty and will affect the safety of many.”16 This reference to the weightiness of considerations is one of the core ideas in proportionality assessments. Yet, weighing alone is not the only consideration in how proportionality was understood in the Just War tradition as well as for many contemporary moral and legal theorists. There were also duty-based considerations as well as the core consequence-based considerations that Grotius refers to. Let us now turn to a fuller discussion of proportionality. III

Proportionality in the conduct of war

One of the key moral conditions for a just war, the proportionality principle, holds that the violence of war not be greater than, or not be much greater than, what war accomplishes.17 Proportionality traditionally has been understood only to concern measuring collateral civilian loss against military gains. If all of the human rights of those who are civilians and soldiers are also 14

15 17

As just one example, consider the very strong international outcry over Israel’s 2014 war against Hamas in Gaza because of the large number of Palestinian children killed in the first weeks of that war. 16 Hugo Grotius, De Jure Belli ac Pacis, pp. 733–34. See May, After War Ends, chap. 4. This latter characterization of proportionality is the one often used in Just War theory today, but one that I will challenge in what follows in this set of chapters.

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taken into account, then most wars will be unjust because of the disproportionate effect of weaponry or tactics on the lives of soldiers. In addition, most wars cannot be justly initiated, even when the war is fought for a just cause, because it can be anticipated that the rights of soldiers will be unjustifiably violated. And war cannot be ended justly because of the large number of human rights violations that cannot possibly be offset by reparations payments at the end of war. I will defend each of these claims in this and later chapters. Here I will discuss proportionality in the conduct of war. The accounts of proportionality in the traditional Just War literature were rather sparse. More recently there have been several significant attempts to provide an account of proportionality that make some advances.18 But from a pacifist perspective, proportionality needs to be rethought, since many of the accounts simply announce that if proportionality is understood a certain way, leading to pacifism, it should not be understood this way.19 In particular, proportionality cannot be properly understood in a reductive individualist way because that often fails to take account of the actual contexts in which proportionality assessments must be made. So here is a somewhat fresh start that does not make any assumptions about how to understand proportionality that might make pacifism more or less plausible. There are two problems that an account of proportionality faces at the outset. First, how are things that appear to be very different, even incommensurable, to be weighed against each other? In particular, how are we to weigh the securing of military objectives, such as retaking a strategically placed hill, against the loss of lives that is likely to result from successfully achieving the military objective? One possibility is to find a common denominator that will allow both the military objective and the loss of lives to be weighed in the same terms. Given the human rights approach adopted by nearly everyone today, perhaps the weighing is not always incommensurable when both the gains of securing the military objective and the expected losses in achieving that objective can be understood in human rights terms. If we accept this commonsense solution to the comparability problem, most wars will have a very high proportionality bar to cross. Most wars have not been fought for comparable goods to those of the goods that are lost, namely the lives of civilians and soldiers on both sides. In some cases, if a people face 18

19

See David Mellow, “Counterfactuals and the Proportionality Criterion,” Ethics and International Affairs, 20/4 (2006), 439–54; Jeff McMahan, “Proportionality in the Afghanistan War,” Ethics and International Affairs, 25/2 (Summer 2011), 143–54; and Suzanne Uniacke, “Proportionality and Self-Defense,” Law and Philosophy, 30 (2011), 253–72. See Walzer, Just and Unjust Wars, p. 129; Douglas Lackey, The Ethics of War and Peace (Englewood Cliffs, NJ: Prentice-Hall, 1989), pp. 40–41; Thomas Hurka, “Proportionality in the Morality of War,” Philosophy and Public Affairs, 33/1 (Winter 2005), 34–66 (44).

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annihilation by an invading army, the high bar seems to be within reach of being crossed. Of course it will matter how many people are in the State that is being attacked and how many people are likely to be killed to save them.20 But even here, as some have argued, we also need to take into account the precedent of having States attacked with impunity – a result that many have said follows from taking a pacifist position. Yet, one of the problems is that appeal to precedents and incentives is notoriously hard to assess in terms that would fit into a proportionality assessment. Second, in making proportionality calculations, it is vitally important that context be taken into account. Proportionality is what might be called a three place predicate: the weighing of what is likely to be lost, say lives (x), compared to what is likely to be gained, say a given military objective (y), in a specific context (z), say, if all other means to achieve y have been exhausted. Things will be quite different if all alternatives have been exhausted instead of the situation where there are reasonable, and less costly, alternatives that have not been seriously considered. Proportionality assessments are very different if the context is one of an armed conflict between two States, or between a State and an insurgency in an occupied territory. Or consider the case of Israeli bombing of suspected Hamas sites in retaliation for the alleged Hamas kidnapping and killing of three Israeli teenagers in June of 2014. It seems to matter if there are casualties after the bombing where no advance warning was given, and those same killings where Israel gave notice of the impending attacks, allowing civilians to flee the site of attack.21 Such considerations in international law and public morality are important in thinking about proportionality. Indeed, as in international law, moral philosophers may need a nuanced understanding of proportionality that is able to deal with vastly different contexts. One special kind of context question concerns how to assess consequences in terms of whether the individuals who are likely to suffer these consequences are on the just or unjust side of the war. Or to put the point differently, should it matter that some soldiers are entitled to take the lives of other soldiers, whereas other soldiers are not, from the standpoint of who is objectively right? Jeff McMahan has argued that we should think of proportionality as either wide or narrow: narrow proportionality involves harms inflicted “on those who were potentially liable to lesser harms”; wide proportionality involves harms inflicted 20

21

See Avishai Margalit and Joseph Raz, “National Self-Determination,” Journal of Philosophy, 87 (September 1990), 439–61; Hurka, “Proportionality in the Morality of War,” 51–53; and Cecile Fabre and Seth Lazar (eds.), The Morality of Defensive War (Oxford University Press, 2014). See Stephen Erlanger and Fares Akram, “By Phone and Leaflet, Israeli Attackers Warn Gazans,” New York Times, Tuesday, July 8, 2014, p. A1. For a very intriguing discussion of proportionality in occupied territories, see Saba Bazargan, “Proportionality, Territorial Occupation, and Enabled Terrorism,” Law and Philosophy, 23 (2013), 435–57.

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on those who were not liable to any harm at all.”22 Harms inflicted in the narrow sense are normally intentional, whereas harms inflicted in the wide sense are normally unintentional. Only wide proportionality is relevant to wartime contexts. This seems to follow the traditional view that proportionality normally only concerns collateral damage to civilians, although McMahan expands this to include soldiers serving on the just side of a war since they, like civilians, are not liable to be harmed. But there are surely contexts where the intentional taking of life should also count in wartime proportionality calculations. Such considerations often occur in the assessment of whether the principle of immunity or discrimination has been satisfied, but it also seems to arise in cases of soldiers’ lives as well, especially in contexts where the lives of soldiers do not need to be taken to spare other lives. Here is where proportionality and necessity intersect. From a pacifist perspective, when there is killing of those who appear to be innocent, the burden of proof shifts to those who would urge that the killing can be justified. Soldiers on both sides of a war have the right to life (to be explored more fully in the next chapter), and since war involves the intentional killing of soldiers, the burden of justifying war is always on the side of those who defend war. Contingent pacifists view proportionality differently than do many Just War theorists in that the likely loss of lives of all those affected by a military action in the conduct of war needs to be put into the balance and weighed against the military objectives that are aimed at. In this sense, I see contingent pacifism as much more of a commonsense view than many versions of Just War theory. It is only common sense that all civilians who are affected by, and all soldiers who are asked to fight in, war have their lives taken into account when judging the proportionality of whether or not a war’s aims are worth so much loss of life and risk of loss of life. It is true though that taking account of all of the possible losses of lives in a proportionality calculation will make nearly all wars very difficult to justify. IV

The rights of civilians

Grotius, often thought to be the founder of secular Just War theory, argued that the lives of civilians were never to be threatened unless they were in some sense complicit in the wrongdoing of the war. And even if the war were unjust, the citizens of the State that lacks just cause were not themselves guilty. The guilty are those “who were responsible for a war” and these people need to be distinguished from those who “followed the leadership.”23 Grotius makes his supporting argument in terms of what he calls “humanitarian instincts” which 22

McMahan, Killing in War, p. 19.

23

Grotius, De Jure Belli ac Pacis, p. 729.

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are different, he says, from “what the laws of men permit.”24 Grotius’ position here is very strong indeed, insofar as it concerns even the accidental killing of innocent civilians.25 Grotius’ view calls into question the very idea that collateral deaths are somehow to be treated as different, and more permissible, than intentionally caused civilian deaths. Grotius does not condemn all war, but offers a very stringent set of conditions for a just war: 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 . . . ”26

These remarks and others have made me think that Grotius is actually quite close to a contingent pacifist.27 In this section I will follow in Grotius’ footsteps in developing a view of how to weigh the lives of civilians in proportionality considerations. For most theorists in the Just War tradition, the lives of civilians are thought to be weightier than the lives of soldiers.28 Indeed, the principle of discrimination requires that civilians not be directly targeted but says nothing about the direct targeting of soldiers. One of the reasons for this difference has to do with how necessity has been understood, the topic of Chapter 5. It is much rarer that a civilian will need to be killed to accomplish a military objective than that a soldier will need to be killed. Since in most cases risking the deaths of civilians does not satisfy the necessity condition, proportionality calculations normally do not arise for the deaths of soldiers, although I will challenge this assumption in the next chapter. The fact that civilians are not generally armed, and hence vulnerable to those who are armed, explains part of the rationale for treating civilians differently than soldiers. And the vulnerability of most civilians also explains why they are thought to be innocent and not properly targetable. Again, because they have a different status vis-à-vis armed combat than do soldiers, it is thought that it is rare that civilian lives can be outweighed by military objectives. Yet, some “civilians” are really much closer to combatants than to the normal characterization of the helpless and innocent civilian. Increasingly, the lives of some civilians will have to be put at risk to accomplish military objectives, especially as the battlefield shifts toward cities. The case of human shields is especially problematic in this respect. 24 27

28

25 Ibid. 26 Ibid., pp. 733–34. Ibid., p. 733. See Larry May, “Grotius and Contingent Pacifism,” Studies in the History of Ethics (February 2006), 1–21; repr. in Larry May and Emily McGill (eds.), Grotius and Law (Farnham: Ashgate, 2014), pp. 357–77. Although see Cecile Fabre’s piece, “Guns, Food, and Liability to Attack in War,” Ethics, 120 (2009), 36–63.

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Here is one relatively uncontroversial definition of human shields, which are of increasing concern today: the intentional use of a party to a conflict of one or more human beings, usually civilians or captured members of the adversary’s forces . . . placed between the adversary and themselves in a way meant to deter an attack against the forces using the human shields, for fear of killing or harming the unarmed shields. The shields are in effect hostages used for strategic purposes.29

That the civilians or prisoners of war are placed in front of the target makes this a matter of forced choice for the party that has to decide whether to attack the military target. Those who are forced into being human shields are certainly still civilians. But those who volunteer to be human shields are in some cases closer to combatants than to civilians. These people have placed themselves in front of military facilities in such a way as to impede the enemy forces from attacking the targets that they want to attack, by increasing the human costs of such attacks. In this way voluntary human shields try to affect the outcome of various battles and even the course of wars. The dividing line that is supposed to be clear between civilians and combatants is significantly blurred by this example. Grotius was aware of the fact that there is often not a clear line between combatants and civilians. And he separated how we should think of such matters into two questions: from the perspective of legal right and from the perspective of justice and humanitarianism. Grotius argues that “the rules of duty” extend more “widely” than “the rules of law.”30 The rules of duty are more demanding, less permissive, and are not influenced by distinctions such as that between civilians and combatants. It seems to me that Grotius is right about this point. But what of civilians on the unjust side of a war – should their lives be considered less valuable than the lives of civilians, or even soldiers, on the just side of a war? We face the question of whether individuals should be tainted by the actions of their States. And with civilians the issue is even less clear than with soldiers, since civilians do not implement the war aims of their States and generally do not “volunteer” to aid in the implementation of their State’s war aims, except in certain cases such as voluntary shield cases.31 Indeed, enemy civilians are not properly named as “enemy” at all except again in rare cases where the civilians come to act like soldiers, as in voluntary human shield cases. 29

30 31

H. Victor Condé, A Handbook of International Human Rights Terminology, 2nd edn. (Lincoln: University of Nebraska Press, 2004), p. 114, quoted in Ammon Rubinstein and Yaniv Roznai, “Human Shields in Modern Armed Conflicts: The Need for Proportionate Proportionality,” Stanford Law & Policy Review, 94 (2011), 93–128 (93). Grotius, De Jure Belli ac Pacis, p. 717. See Newton and May, Proportionality in International Law, chap. 8.

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Some civilians do aid in the war effort by baking the bread for the soldier’s mess for instance, or working in a munitions factory. Indeed, Grotius argues that farmers and merchants should be spared even if they contribute to the war effort. The lives of these civilians can perhaps be weighted as less valuable than the lives of those civilians who do not support the war effort. But it is rare that killing them is necessary for advancing a military objective, so devaluing the lives of these civilians in a proportionality assessment would not normally arise since the necessity threshold has not been crossed. From a human rights perspective, as well as from a humanitarian perspective, the lives of civilians are given high regard, except when there is some complicity of the civilians in an aggressive war. I take up complicity concerns in greater detail in Chapter 6. Civilians may have voted for the political leaders who take a State to war, and civilians may even have voted for the war itself, or at least have known going to war was in the platform of the political candidate they voted for. Does this make their lives less weighty in a proportionality calculation? This question could be partially answered by necessity considerations, since it is rare that a strategy of war would depend on killing those civilians who voted for a given war. What if these civilians are about to vote for such a war: Could they be targeted when otherwise they should not be targeted? If it could be predicted with high probability how civilians would vote, then perhaps the citizen-voters are more like soldiers than regular civilians. But from the human rights perspective I am advocating, their lives should never be dismissed or severely discounted. So those who now raise questions about the justifiability of targeting civilians need to think harder about human rights concerns.32 From a human rights perspective, generally all lives of a certain kind are to be treated the same. The nature of rights is that they guarantee that every member of the rights community is granted a certain kind of recognition and respect, primarily as having a life that is worthy of being protected against arbitrary deprivation of that which makes the life worth living. Indeed, what is of significance is that the protection against arbitrary deprivations protect the distinctive aspects of the kind of life it is that is said to be the subject of rights.33 In the case of human rights, it is somewhat controversial what makes the lives of humans distinctly different from other lives. But the idea that humans 32

33

See Fabre, “Guns, Food, and Liability to Attack in War”; and Helen Frowe, “Killing the Red Cross,” paper presented at annual meeting of the Society for Applied Philosophy, Manchester, July 2011. Also see Gabriella Blum, “The Dispensable Lives of Soldiers,” Journal of Legal Analysis, 2 (2010), 69–124; and Aaron Fellmeth, “Questioning Civilian Immunity,” Texas International Law Journal, 43 (2008), 453–97. See John Deigh, “Human Rights as Political Rights: A Critique,” Journal of Social Philosophy, 44/1 (Spring 2013), 22–42.

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are rational beings who are social in that they can band together and execute complex plans has had staying power as the distinctive character of human lives since at least the time of the ancient Greeks. And adult humans in particular should not be deprived of their rational capacities and the freedom necessary to execute decisions on the basis of rational reflection so that we can protect what is characteristic of the lives of these humans.34 Humans have rights that are clearly jeopardized by wars because of the aggression of one State that seeks to restrict the liberty of another State’s citizens, and also because of the threat to the distinctive lives of civilians and soldiers that comes from massive violence. War jeopardizes the lives of everyone but it does so especially for humans who not only risk the loss of bare life but also the loss of distinctively human lives. It is for this reason that some have argued that the risks of being attacked and occupied are somehow more important than other risked losses during war.35 And while it is true that there are somewhat different risks for those who are attacked than for those who do the attacking, the lives and rights of civilians and soldiers during war is seriously jeopardized on both sides. One thing to note is that a human cannot lead a characteristically human life if that human cannot lead a life at all. In this sense, certain things that are not characteristic of human life are nonetheless more significant for the life of a human than things that are characteristic. And here is how war becomes the great leveler – it causes extremely serious risks to all humans (and other creatures) in ways that are not significantly different for humans on one side of the war than those on the other side. This is not to say that the risked loss of liberty is not important, but only that in most cases it is not as important as the risked loss of life itself. There are some exceptions of course, such as where the life that can be led, because of the restrictions of liberty, may not be worth living. But such cases are rare, and mainly occur where there is virtually no liberty left to the humans in question, perhaps because they are in persistent vegetative states. Humans are not necessarily innocent, but their lives have value nonetheless. The lives of innocent humans are of special concern from the standpoint of morality, because of the dignity that is embodied in each human person. Grotius anticipates this Kantian line of argument when he says that men are “endowed with a sense of honor and justice.”36 On the basis of this dignity or honor humans have rights that are independent of their legal status. Human rights are only a part of morality, but a very significant part because of the strong 34 35 36

Those human beings who are not capable of rational thought still need protections of various sorts having to do with the distinctive kind of human life they are capable of pursuing. See, for instance, Seth Lazar, “Associative Duties and the Ethics of Killing in War,” Journal of Practical Ethics, 1/1 (2014), 3–48. Grotius, De Jure Belli ac Pacis, p. 717.

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connection between human rights and institutions. And from the perspective of human rights all should have equal access to, and be afforded equal treatment from, the institutions that are to protect human rights. What of the view that humans all have equal basic rights with all other humans? If only some humans are innocent, what are we to make of the claim of equality of human rights? One answer to these questions posits a threshold below which the lives of those who are not innocent cannot fall without serious injustice. The general idea, as we will see, is that no one can legitimately be deprived of basic rights no matter what is true of their innocence. Such a view tries to be true to the idea that one has rights by virtue of being human and that only when one ceases to be human does one lose the most basic of one’s human rights. Now let us turn briefly to the moral status of enemy civilians whose State is engaged in an unjust war. In turning to enemy civilians who are on the unjust side of a war things get even more difficult for the theorist who wants to discount the rights of these civilians as if they had the same status as their fellow soldiers. As I have already indicated, merely voting for someone who then takes the nation into an unjust war hardly counts as making these people liable to be attacked or killed. The case where the voter needs to be killed in order to save our own citizens from attack is so rare and out of the realm of reality that a contingent pacifist need not adjust his or her views on the basis of such an example. The same is true concerning their status as possibly unjust civilians because of their choices. Showing respect for the rights of these civilians means granting them also the benefit of the doubt and does not warrant treating them as if their status is the same as that of their State. There are serious epistemic reasons to reject the view that individual soldiers or citizens know why their State takes them to war. In addition, there are significant reasons not to treat the citizen civilians as unjust on the basis of what their State leaders have done. Even those who voluntarily participate in what they believe to be an unjust war should not be treated as people who have incurred a liability to be attacked or killed. V

The risk of unjustifiable killing in an unjust war

In this section I set out the cumulative argument that supports contingent pacifism in terms of the moral risks that soldiers face, especially in terms of the risk of violating the rights of civilians as well as of soldiers. First we should note again that the likelihood that innocent people will be killed in war has increased dramatically over the recent centuries.37 As we have seen, the use of tactics such 37

Fellmeth, “Questioning Civilian Immunity.” Citing UN and ICRC data, Fellmeth concludes that “there is little doubt that civilian casualty rates have increased dramatically” (455).

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as high-altitude bombers as well as increased guerrilla wars, where battles take place in cities rather than in empty fields or in open ocean waters, has made it more likely that the rules of war concerning conduct will be violated.38 And the increase in civil wars and wars involving non-State actors, as well as claimed humanitarian wars, has made it more likely that the conditions concerning the justice of initiating war will also be violated. The major moral risk of participating in war has always been that one will unjustifiably kill innocent people. The killing of the innocent is a moral wrong, and the intentional killing of the innocent without justification or excuse is a paradigmatic moral wrong. In virtually all societies, moral norms have prohibited the killing of the innocent. Murder is considered the worst of illegal acts, and this reflects the strong moral sentiment against killing the innocent. Similar things can be said of manslaughter, even in those cases where the intentional aspect is diminished or eliminated. Abortion and euthanasia are also highly controversial because of the way these practices seem, at least to some people, to involve the killing of the innocent. Again, only when there is a clear justification or excuse open to the agent is the agent’s conduct of killing the innocent not roundly condemned. War offers only limited justification or excuse from the moral prohibition on killing the innocent. It is uncontroversial that war involves intentional killing but not all killing in war involves the innocent. When a soldier is confronted by an enemy soldier who intends to kill him, self-defense will sometimes justify the intentional killing of the threatening enemy soldier. Indeed, sometimes even the killing of the innocent can itself be justified on grounds of self-defense in a domestic case, as when the aggressor is not acting intentionally and is an innocent aggressor who can only be stopped from killing you by killing him. But if the innocent people who are killed are not themselves threats to the lives of those who kill them, such as in the case of the killing of civilians by soldiers, or threats to the ones who are protecting those who kill them, the fact that innocent people will be killed is enough to render the action or practice morally problematic.39 If a war involves the unjustified killing of the innocent, then soldiers should be counseled to avoid participating in such wars. For the contingent pacifist, what matters most is not that everyone killed in war is innocent, or that killing them is disproportionate. Instead, what matters is that there are very many ways that victims of an attack in war could turn out to be innocent, as a contingent matter. First, the victim may be a civilian 38 39

See May, War Crimes and Just War. At this point I am considering the analogy between intentional killing in domestic settings and killing in war. In the next chapter I will expand this argument to include those who kill but not intentionally.

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directly targeted even though playing no role in the war. Second, the victim may be killed as a side effect, or collateral damage, of the war, but innocent nonetheless.40 Third, enemy combatants may turn out to be just combatants, and hence possibly innocent in the sense that they are not liable to be attacked. Fourth, even if a soldier is fighting against unjust combatants, some of them may pose no current threat; and even if a soldier is fighting against unjust combatants, it may be possible to eliminate the threat that some pose in ways that do not involve killing of the so-called unjust combatants, or otherwise harming them.41 A second important idea is that some theorists of the Just War have gained many adherents by arguing that soldiers cannot evade responsibility for the deaths they cause if they are fighting in an unjust war. In defending the idea of a just war, these theorists have attacked the moral equality of soldiers, a lynchpin of older defenses of a just war. The “moral equality of soldiers” thesis is the view that all soldiers, those who fight with just cause and those who do not, have lost their right not to be killed and also have acquired the right to kill enemy soldiers. Some Just War theorists have countered that unjust combatants are liable to be attacked, but just combatants are not. Just combatants can kill unjust combatants, but unjust combatants cannot kill just combatants. So, we should not treat all soldiers as morally equal – it matters which side they fight on. But there is still a strong commitment to treating soldiers collectively rather than individually. All soldiers who fight in just wars are to be generally treated as exempt from liability to be attacked, and all soldiers who fight in unjust wars are generally to be considered liable to be attacked.42 Yet, I previously argued that there remains a minimal moral equality of soldiers that rules out unnecessary killing. The problem, though, is that it is often very hard to tell if a soldier is fighting in a just as opposed to an unjust war, or that it is necessary to kill him or her.43 It 40

41 42

43

See David Lefkowitz, “Collateral Damage,” in Larry May and Emily Crookston (eds.),War: Essays in Political Philosophy (New York: Cambridge University Press, 2008), pp. 145–64. Lefkowitz ends his essay by saying that he has shown that “no defense [of collateral damage] proves to be satisfactory. If so, then it appears that in practice the person ought to become a pacifist” (p. 64). I am grateful to Jeff McMahan here. For a similar discussion, see my book, War Crimes and Just War. The best-known defense of the moral equality of soldiers comes from Michael Walzer in his book, Just and Unjust Wars. Among the theorists who have criticized this view are McMahan, Killing in War; Coady, Morality and Political Violence; and Lionel McPherson, “Innocence and Responsibility in War,” Canadian Journal of Philosophy, 34 (2004), 485–506. For a partial defense of the “equality of soldiers” thesis on grounds of instilling a sense of honor among soldiers, see my book War Crimes and Just War. McMahan seemingly supports this when he says: “Even the acknowledged experts – the theorists of the just war – disagree among themselves about the justice of virtually every war” (Killing in War, p. 120). McMahan does not say what the Just War experts are experts about.

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may be that there are true Just War experts, that is, people who have exemplary knowledge of the theory and the facts, but I do not know of any such people in the history of the Just War tradition. Nonetheless, it is important that even such experts as there are disagree about which wars were just and which were unjust. Given this fact about the Just War tradition, soldiers should definitely not trust their own intuitions about whether a war they plan to participate in is a just war. And there is an additional reason why soldiers should not trust “their own sense that their war is just.”44 In nearly every war, the soldiers who fight it believe that they are fighting a just war. In part this is because they have a vested interest in believing what their leaders tell them and also because they become socialized to identify with projects that their countries support. So, soldiers have very good grounds for being uncertain about whether a given war is just or unjust.45 Contingent pacifists would argue that soldiers are not entitled to be certain about the morality of most wars, and hence in nearly all wars the morally safer course is not to fight. Dividing wars into defensive and offensive wars doesn’t help much either, since some offensive wars can turn out to be justified. Offensive wars generally are fought when the party starting the war has not been attacked and is hence not fighting for self-defensive reasons. Humanitarian intervention, which can include wars fought against States assaulting their own people, seems to be a clear exception to the general wrongness of aggressive wars. This also seems to be true of wars that are fought to preempt another State from launching an attack. Yet, these claims seem to be true even though the State that launches a war of humanitarian intervention is not itself acting in self-defense. And even some seemingly defensive wars may be unjust. One classic case of this category is the war that seems to be defensive but where the seeming aggressor was provoked to attack by the unjustified acts of the defending State. Sometimes provocation shifts the moral ground so that the attacking State may be justified and the defending state may not be justified in its war. Ascertaining when provocation crosses the line and achieves the status of aggression is very hard to determine. Indeed, for this reason I have elsewhere urged that we think of the trigger for aggressive war not in terms of the party that strikes first but in terms of the party that first engages in wrongful behavior.46 One could argue that soldiers who fight on the unjust side of a war are “objectively unjustified threats” even if they are not actual threats to anyone.47 Here 44 45 46 47

Ibid., p. 144. And even McMahan admits that “When a soldier is uncertain about the morality of a war, the presumption should be that the morally safer course is not to fight” (ibid., p. 149). See Larry May, “Preventive War and Trials of Aggression,” in Deen Chatterjee (ed.), Gathering Threats: Moral Perspectives on Preventive War (New York: Cambridge University Press, 2013). See McMahan, Killing in War, p. 35.

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the category of “objective threat” is based not on the actual circumstances but on one’s being on the unjust side of a war. But it is very unclear why the word threat is used at all here, since what does all of the work is the “objective wrongness” of fighting in an unjust war. I take it that some defenders of this view would not be happy with dropping the term “threat” altogether in the characterization of those who are liable to be attacked. It may be a serious moral failing to be “objectively wrong” in what one does, but this is not sufficient to make one liable to be attacked or killed. There must be something specific about the wrongness that accounts for the liability to be attacked.48 And here is where the additional component of “threat” comes in. But unless the “objectively unjustified threat” is an actual current threat (a hereand-now threat), or is at least defeasible by actual evidence about a particular soldier’s circumstances, it is hard to see how liability to be attacked and killed follows from merely being “objectively wrong.” Some theorists argue that past contribution to present threat will also count to make one liable to be attacked and killed. This position is highly counterintuitive unless the current threat that one’s past wrongful conduct contributes to is specific and defeasible. If it is claimed that a soldier’s past conduct contributed to making it slightly easier for other soldiers to engage in a current attack there are a number of important questions to be answered that are normally glossed over. The most significant is whether the aspect of the conduct that makes it wrong is relevantly related to the threat that the conduct causally contributes to. The relevance is important in that the upshot of the claimed contribution or participation must somehow make the soldier liable to be killed.49 It is also sometimes said that soldiers fighting on an unjust side of a war who do not realize that they are doing so, and are not negligent in failing to see it, can be responsible nonetheless. It may be true that these soldiers are excused due to their ignorance, but there may be a residual amount of responsibility that these soldiers bear for their objectively unjust actions. In Chapter 6, I will take up some cases of this sort as I argue that even in cases where there is a residual responsibility, liability to be attacked or killed does not follow from such minimal responsibility – rather taint or pollution seem to be better categories than liability here.50 Another strategy is to think of soldiers fighting on these various sides as collectivities rather than as individuals. The key question will be whether the 48

49 50

See Seth Lazar, “Responsibility, Risk, and Killing in Self-Defense,” Ethics, 119/4 (2009), 699– 728, who comes to similar conclusions to those I reach in this section but for somewhat different reasons. On this general point see Joel Feinberg’s discussion of the tri-conditional analysis of fault in his essay “Sua Culpa,” in his book Doing and Deserving (Princeton University Press, 1970). I thank Andrew Forcehimes and Saba Bazargan for pressing me on this point.

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group of soldiers fighting on the unjust side of a war constitutes a threat that must be eliminated for the soldiers fighting on the just side to achieve some significant good. But there are reasons to think that enemy soldiers treated as a group do not pose such a threat, as we will see in the next section. If soldiers cannot morally be treated as a class or collectivity in terms of being threats, then it cannot be the case that merely being an enemy soldier is sufficient for them to be liable to be attacked or killed. And here it seems to me that some Just War adherents should be more supportive of contingent pacifism than they often are. It is not clear that many or any soldiers are epistemically entitled to feel that their enemies are serving on the unjust side of a war and hence can legitimately be killed.51 So, there is a variety of moral risks that soldiers should consider, and that jointly support contingent pacifism. First, increasingly in contemporary wars a soldier risks killing civilians, and many of these civilians are innocent. Second, a soldier runs the risk that what he or she thought was a just war is actually an unjust war, and hence that he or she is participating in an unjust war after all. Third, even among those soldiers fighting in a just war, a soldier risks unjustified killing since not all enemy soldiers are liable to be attacked and killed, because killing them is not necessary or proportionate. And in any event, soldiers run the risk of killing civilians who are innocent. Thus the moral risks of participating in war are great. But, these moral risks can be overridden by other moral considerations. Hence, the soldier still needs to examine each war on a case-by-case basis. In a later chapter I consider how contemporary Just War theorists have sought to counter these objections to the idea of a just war, starting with a return to the idea, which Augustine expounded, that while war risks killing the innocent, innocent lives are also risked by not engaging in just wars, as well as the idea that some innocent lives can rightly be taken as a matter of collateral damage. Throughout this chapter I have taken an unusual position in the debates about war and peace. I have argued that we should understand the Just War criteria of immunity and proportionality during the conduct of war as having more serious restraints on killing during war than is often allowed today. The two positions, respect for the rights of all humans affected by war and support for pacifism, have rarely been defended together. But it seems to me that these positions are made for each other. For how could most wars be defended if one had to take seriously the lives and rights of every civilian or soldier who participates in, or is affected by, war or armed conflict? Rather than being an outlier, it seems to me that if one takes seriously the lives of our fellow humans 51

See Lazar, “Responsibility, Risk, and Killing in Self-Defense”; and Andrew Forcehimes, “Luck ad Bellum,” unpublished manuscript in possession of author.

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who happen to be risking their lives for us, one has to be very wary of supporting any wars at all. And then it is a short step to seeing that the position of the contingent pacifist is the one that meshes best with respect for the dignity of the lives and rights of soldiers, as well as for the lives and rights of civilians.

5

Necessity and the rights of soldiers

As we have seen, the Just War tradition began life, primarily in the writings of Augustine and other Church Fathers, as a reaction to pacifism. Similarly, in my view, contemporary Just War adherents should see contingent pacifism as the main alternative. The key question of the Just War tradition is how to justify war given that war involves intentionally attacking or killing innocent people. And this justificatory enterprise is not an easy one. Today some theorists argue that some, but not all, soldiers are liable to be attacked, especially those who fight in an unjust war. In this view, some of those who fight and kill in unjust wars should not be excused for following orders or even for their ignorance. Yet, it is often hard to tell if one is fighting in an unjust war, or whether military orders are unjust. In this chapter, I will argue that in light of considerations of necessity the moral risks of participating in war are so high that pacifism, at least in its contingent form, should be seen as a reasonable option. As argued in the previous chapter, there is a variety of moral risks that soldiers should consider, and that jointly support contingent pacifism. Contingent pacifism is the best advice to give to young men and women who are contemplating participating in wars. Indeed, this way of thinking of pacifism makes it a commonsense view rather than a view that is “unworldly.” Just War adherents will need to counter the seeming common sense of the contingent pacifist’s advice to soldiers. In what follows, I will argue that soldiers have certain rights that cannot be forfeited and that as a result the killing of soldiers in war is highly problematic morally. In the first section of this chapter I explain how human rights relate to rolebased rights, such as those of soldiers. In the second, I provide several accounts of what necessity in war has meant in both law and morality. In the third section I defend the idea that soldiers have a right not to be killed unnecessarily. In the fourth section I come back to the idea of the moral equality of soldiers, arguing that even if soldiers forfeit some rights, all soldiers retain the right not to be killed unnecessarily. In the fifth section I take up the case where one “knows” that one is fighting in a just war. In the sixth section I will then consider the rights of “enemy” soldiers. Finally, in the seventh section I consider and respond to some objections to what I have argued in the last two chapters. 87

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I

Human rights and role-based rights

The crucial feature of human rights is that they attach to every human person regardless of role or situation. And on many accounts, human rights also have the feature of being absolute or near-absolute norms – they cannot generally be overridden by even very compelling moral considerations. As Ronald Dworkin famously said, rights are trumps in that most other consequentialist considerations are trumped by claims of rights.1 But even for Dworkin there were different types of rights that had different weights even though the general category of rights is best understood as having overriding status when in conflict with consequentialist considerations. Role-based rights, in contrast to human rights, are not only restricted to the class of people who occupy a certain role, say that of doctor or lawyer, but rolebased rights also are not well described as trumps against all consequentialist concerns. Instead, calling something a role-based right is primarily a means of indicating that that right is highly restricted both as to its class of possible holders as well as in its reach or extent. Nonetheless, role-based rights are such that they will override certain consequentialist considerations within the context of the specific circumstances where they apply. A lawyer’s right to maintain the confidences of his or her client trumps most specific consequentialist considerations concerning the good of such a disclosure, but not all consequentialist considerations, for instance when someone’s life is at risk by nondisclosure. Role-based rights and human rights can merge in some respects, or at least resemble each other, if those that occupy a given role are, or could be, nearly any human. It is my view that role-based rights of soldiers are of this sort. While it takes special training to be a soldier, very many humans could be trained to be soldiers. This is different from those who are lawyers or doctors, for instance. In these cases, most people could not become doctors or lawyers because of highly specialized skill that is involved and that is not something that it is easy, or even possible, for many people to learn without already having a special aptitude for it. I do not mean to diminish the importance or level of skill required to occupy the role of soldier here. Boot camp, where people are put through very rigorous physical training, is certainly not something that everyone could succeed at. But a very large percentage of the human population could succeed in boot camp and become competent soldiers, as has been seen in the two world wars of the twentieth century where very high percentages of people in many very diverse societies were transformed into reasonable soldiers. In this sense, most people could fill the role of soldier, in ways that are not true of other important roles. 1

Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1976), chap. 7.

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So, the range of application of some role-based rights that resemble human rights in terms of their extent, such as that of soldiers, is different from most role-based rights, and closer to the range of application of human rights than is true of most role-based rights. Even as the range of some role-based rights is nearly as extensive as human rights, these role-based rights still can be distinguished in terms of the overridingness of these role-based rights. All role-based rights are restricted in terms of the range of what they can trump or override. Typically role-based rights only trump other, primarily consequentialist, concerns involving matters having to do with the role. In the case of human rights, by contrast, the domain over which these rights are trumps is considerably larger than for role-based rights. Indeed, as the domain over which role-based rights operate increases, the corresponding overridingness will increase as well. Role-based rights of soldiers are grounded in two conditions: the status of being a soldier and the value of having people serve in that role, on the one hand, and the various vulnerabilities that attach to those who occupy the role of soldier, on the other hand. While this will be explained later in this chapter, let me here just say that the kind of vulnerabilities that soldiers are exposed to by occupying their role is also closer to that of those who have human rights than many other role-based rights holders. The vulnerabilities that soldiers experience are similar to the vulnerabilities of all humans who are exposed to situations of war and armed conflict. By this I mean that situations of war or armed conflict are artificially constructed situations that expose anyone in a given area to extraordinary threats to life and liberty, although soldiers also have unique vulnerabilities here because of their role. In Just War theory, the vulnerabilities of civilians during times of war or armed conflict have been well recognized. Indeed, most of the traditional rules of war in humanitarian law have followed ideas in the Just War tradition in that they are aimed at providing protection for vulnerable civilians caught up in the effects of war. Soldiers are not often thought to be vulnerable in the way in which civilians are, since soldiers carry weapons and have specialized training in self-defense not normally available to untrained civilians. Indeed, rules such as those propounded by the International Committee of the Red Cross, especially the Geneva Conventions, are generally aimed at the protection of civilians who happen to take a direct part in armed conflict, or of soldiers who are no longer in battle because they have surrendered or become incapacitated by their injuries, not strictly of the soldiers who participate in armed conflict. Nonetheless, in what follows I will argue that it is a mistake to disregard the increased vulnerabilities that soldiers have in armed conflict and I will argue that we should extend to soldiers protections that are normally only afforded to civilians who are involved, or even just caught up, in armed conflict.

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II

The concept of necessity

The idea that one should only use lethal force when it is necessary is one of the most important concepts in the humanitarian restrictions of action during war or armed conflict. Yet, for centuries necessity has been understood in the rules and laws of war in terms of “military necessity.” For many theorists and practitioners, the concept of military necessity has little to do with the commonsense understanding of necessity. Rather military necessity means simply that there is some goal that a commander is pursuing, and that goal has some clear connection to the winning of a particular battle and the overall winning of the war. In this section, I wish first to give a sense of the different relevant meanings of the term necessity in debates about the humanitarian treatment of soldiers and civilians. But I will also argue in this section that the kind of necessity that warrants extraordinary treatment of various persons for a military objective is not the right kind of necessity to justify suspending or abrogating the humanitarian rights of the soldier. To highlight the issue let me give several examples of attempts to explain what military necessity consists in. I begin with two judgments from the trials after the Second World War of Nazi German officials, where somewhat different standards of military necessity are set out. First, consider the Hostage case. The American Military Tribunal rejected the argument of the legality of reprisal killings of civilians, describing the general principle of military necessity and then describing its limits: Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money . . . It permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war.

Notice that this statement of the principle of military necessity does not set limits on the use of force needed to kill enemy soldiers, as long as those deaths are “incidentally unavoidable” to achieve military objectives. The term “incidentally unavoidable,” bears some relationship to the commonsense understanding of necessity. If something is unavoidable then it is fair to say that it is necessary, and necessity here seems to be an appropriate label. But the qualifying term “incidental” raises suspicions that military necessity here is not really necessity as it would be understood in common parlance. Something can be “incidental” in that it is part of one way of accomplishing something, not the only way to accomplish the objective, as would seemingly be true if it were really necessary. Yet, there is a second part of the Hostage case where it is made clear that military necessity protects civilians and civilian property more strictly than it

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protects the lives of soldiers. “Military necessity does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by the necessities of war . . . There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces.”2 Here we have the words “imperatively demanded” rather than “incidentally unavoidable,” signaling that civilian life and property is to be valued more highly than the lives of soldiers, since “imperatively demanded” is much closer to the commonsense meaning of necessity than “incidentally unavoidable.” Secondly, another case from Nuremberg uses different language from either of these parts of the Hostage case. In the German High Command case, military necessity is described as follows: A bare declaration that what was done was militarily necessary has no more probative substance than a statement contained in an answer or other pleading. In order to make out a valid defense of destruction or pillage on the ground of military necessity, the defendant must prove that the facts and circumstances were such at the time he ordered these measures that he would be justified in believing them to be necessary to save his troops from an imminent disaster.3

Here we have an account of military necessity that is much closer to commonsense understandings of necessity. The situation has to be one where if lethal force were not used the commander’s troops would suffer “from an imminent disaster.” The terminology employed in the German High Command case sets the bar very high indeed, and seems to me to be quite close to what necessity should mean in military necessity if necessity were indeed the correct term, that is, some type of practical or normative necessity. Notice the use of two terms. There is the idea that a disaster would ensue if the lethal action were not taken. We are not merely to contemplate accomplishing a military objective, but only one that would save the lives of one’s own troops. And then there is also the term “imminent,” signaling that if this particular lethal action is not taken here, the lives of one’s troops will be lost. Thirdly, in the Just War tradition, imminence and immediacy have been employed for centuries to make sense of the principle of necessity in justice 2

3

United States v. List (the Hostage case), Case No. 7 (Feb. 19, 1948), repr. in The United Nations War Crimes Commission, Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, 15 vols. (Washington, DC: United States Government Printing Office, 1949–53), vol. XIII, pp. 1253–55. For a comment on this passage, see Michael N. Schmitt, “Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance,”Virginia Journal of International Law, 50/4 (2010), 795–839, Section I.A. United States v. Wilhelm von Leeb and Thirteen Others (the German High Command Case), United States Military Tribunal, Nuremberg, December 30, 1947 – October 28, 1948, repr. in United Nations War Crimes Commission, Trials of War Criminals, vol. XII, p. 125.

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considerations of conduct in war. In Hugo Grotius’ great work, De Jure Belli ac Pacis, he says that “The danger again must be immediate and imminent.”4 He follows this up by saying: “I maintain that he cannot lawfully be killed, either if the danger can in any other way be avoided, or if it is not altogether certain that the danger cannot be otherwise avoided.”5 There are three standards of necessity articulated here. The first is the “imminence” standard just discussed. The second is “immediacy,” the temporal equivalent of the spatial category of imminence. And the third is the standard that there cannot be “any other way [the killing can] be avoided.” A fourth approach is to understand necessity in terms of marginal risks where these are weighted so as to reduce the status of those who are in the wrong.6 So, if one is an unjustified threat to another person then the necessity calculation will be made differently than if one is not an unjustified threat. As we will see, I will offer reasons to reject views of this sort, and will offer an alternative view that seems both more plausible and workable for those who participate in war or armed conflict. But I recognize that the current work on the principle of necessity is moving in a different direction. As always, my aim is to try to get readers to remain open to plausible alternatives that might make more room for contingent pacifism. The “no other way” standard is stronger than either the “incidentally unavoidable” standard, where incidental is the modifier, or the “imperatively demanded” standard, which seems to be restricted to civilian deaths. In Grotius’ view, military necessity is not incidental but central to incidents of war, and military necessity is not restricted to lethal action taken against civilians, as it was for both of the Nuremberg cases. Normatively, Grotius’ standard for military necessity seems to be a more defensible commonsense standard than either of the two standards of military necessity that we can find in the Nuremberg proceedings. I will say more about this issue. III

The right not to be killed unnecessarily

In this section I will defend the idea that soldiers have the right not to be killed unnecessarily. This humanitarian right is crucial as counteracting the adverse effects of the duties that soldiers have toward civilians and their property, as well as the fact that soldiers are faced with lethal actors on the other side of 4 6

5 Ibid., p. 175. Grotius, De Jure Belli ac Pacis, p. 173. See Lazar, “Necessity in Self-Defense and War,” 13. His preferred way to understand necessity is: “Defensive harm H is necessary to avert unjustified threat T if and only if a reasonable agent with access to the evidence available to Defender would judge that there is no less harmful alternative, such that the marginal risk of morally weighted harm in H compared with that in the alternative is not justified by a counterveiling marginal reduction in risked harm to the prospective victims of T.”

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an armed conflict.7 I will develop these points in this section. And I will argue that this right sits between an absolute right of soldiers not to be killed, which certain pacifists have espoused, and the traditional understanding of active-duty soldiers as having no right, of any sort, not to be killed. The right not to be killed unnecessarily becomes a lynchpin in the case for contingent pacifism, and is something that can be supported by many Just War theorists today. Let us begin this section with an example from the first Iraq War that is taken from my co-authored book on proportionality in international law. On February 26–27, 1991, Iraqi soldiers mingled with a column of panicked civilians who had commandeered any form of transportation to leave Mutlai, Kuwait and escape to Basra, Iraq. Responding to Iraqi small arms fire, a five mile long column of retreating Hammurabi Division forces was attacked. As the coalition land assault began to the west, US airpower disabled vehicles at the front and rear of the convoy, thereby creating a 7 mile long traffic jam. Many Iraqi soldiers and civilians died in the seven hours of subsequent strafing along what became known as “the Highway of Death.”8

General McCaffrey’s official report concluded that 400 Iraqi soldiers were killed with no loss of American life. There are interesting proportionality issues here but I think there are even more interesting necessity issues.9 It seems that it would be hard to defend such killings on the grounds of the self-defense rights of the coalition forces that killed these 400 Iraqi soldiers. Indeed, that there were no coalition casualties is partial support for this proposition. In addition, fleeing soldiers at the time they are fleeing do not pose a threat to anyone. And unlike the soldier taking a bath, fleeing soldiers are unlikely to reverse course in the immediate future. The question is whether or not these soldiers have forfeited some rights and have the overall status of being without the right not to be attacked in this situation. One of the traditional defenses of actions such as occurred on the Highway of Death is that even fleeing enemy soldiers could easily regroup at another place and launch an attack on one’s own soldiers. Killing as many enemy soldiers as one can conforms to the traditional view, associated with the Lieber Code, to shorten the war and hence shorten the amount of time where there will be killing of soldiers. In most cases, the overall saving of life is best accomplished by granting to each combatant the right to kill as many enemy soldiers as possible in the shortest period of time. And in some respects, the Iraq War was probably shortened by the slaughter that took place on the Highway of Death. But notice 7

8 9

For a very different philosophical account of humanitarian rights in the context of necessity calculations, see Joanna Mary Firth and Jonathan Quong, “Necessity, Moral Liability, and Defensive Harm,” Law and Philosophy, 31 (2012), 673–701. Newton and May, Proportionality in International Law, p. 73. For more on this example, see ibid., chap. 4.

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that many commentators used the term slaughter, just as I did, not calling what occurred a normal exercise of pursuing a needed military objective. Soldiers taking a bath could pick up their weapons and put on their uniforms and become active threats again in very short order. Yet, in the case of the naked soldier, our moral intuitions would counsel that it would be in some sense wrong to kill the unarmed and naked “soldier.”10 Intuitions can sometimes be unreliable guides to what should be done, especially in an all-things-considered context. But on most accounts of people who have been faced with such a case of naked or fleeing soldiers, they have failed to kill, and would think it perverse for soldiers to be killed in such settings.11 In domestic legal contexts, fleeing suspects have the right not to be killed unnecessarily. So, one question to ask is whether there is some salient difference between fleeing suspects and fleeing enemy soldiers. One supposed difference concerns the different domains of everyday life and of wartime. I take up this point in more detail at the end of the following section. Here I wish to note that respect for the dignity of those who occupy the roles of soldier and bank robber would seem to require the same standard be used. Of course, this does not yet determine how stringent that standard should be. In the next section I take up the issue of how to understand the moral status of soldiers vis-à-vis each other. Before turning to that issue, let me explore a bit more what are the limits of the expanded notion of military necessity and the corresponding right of soldiers not to be killed unnecessarily. Even if it were true that soldiers forfeited some of their most basic rights by becoming soldiers, it will still be true that soldiers need extra protection due to assuming this role. On the assumption that soldiers can be killed, or are liable to be killed, because they have assumed a different, more dangerous status from other humans, what this also means is that soldiers are more vulnerable than all other humans who retain the right not to be killed. Because soldiers are at increased vulnerability to be killed, it would make sense also to say that soldiers should have special rights that minimize the harm that is likely to occur to them because of their loss, even if only temporarily, of basic rights. In some respects, this is what humanitarian law has traditionally sought to do: to provide a set of special rights not to suffer unnecessarily, that are especially apt for soldiers who are more vulnerable to such suffering since they lack the protections of basic human rights such as the right to life and the right not to be attacked. There is a kind of special vulnerability that occurs for soldiers in wartime circumstances even if it is true that soldiers have forfeited basic general rights. But specifically how vulnerable soldiers are varies, as do the specific ways soldiers are vulnerable. This variability is due to the changing character of war 10 11

See my book War Crimes and Just War, chap. 5. See Walzer, Just and Unjust Wars.

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and armed conflict over the ages. In traditional ways of thinking of humanitarian law, the key right is that soldiers not suffer unnecessarily. What counts as necessary, as I argued above, is and has been contentious. But what the specific vulnerabilities are is not so contentious. Consider that concern for the rights of civilians during war has meant that they can be directly attacked only if it is clear that these civilians pose a threat to other civilians or soldiers. It is my view that in such a situation the special rights of soldiers must also be expanded so as to protect the soldiers in their special vulnerabilities. This protection is needed due to the increased vulnerability that these soldiers face, which is itself due to the restrictions on the rules of engagement aimed at protecting civilians. Consider a situation where the soldiers must first announce themselves before entering a building believed to be occupied by enemy warriors.12 This restriction on the rules of engagement again would warrant an expanded set of role-based rights for soldiers aimed at protecting the soldiers in their now more vulnerable states. In cases where soldiers face increased vulnerability, it would make sense to say that soldiers should only take on this increased risk if it is clear that taking on a risk of death is strictly necessary for achieving a legitimate military objective. Indeed, the fact that soldiers are supposed to risk their lives while in combat does not make them have fewer special rights. Rather, their increased vulnerabilities should be seen as supporting increased special rights. The special rights are extended at least in part to compensate for the decrease in general rights that they face because of their supposed forfeiture of basic general rights when they assume the role of soldier. In some respects, it seems as if one could easily assimilate the right not to be killed unnecessarily to the traditional understanding of the killing of soldiers by looking to the long-term consequences and recognizing that all killing of enemy soldiers is in some sense necessary to ending the war. Here I wish to return to the ideas of Grotius outlined above. Military necessity is best understood normatively if it is qualified by both temporal and spatial restrictions having to do with context. The ideas of “imminence” and “immediacy” are crucial for a plausible understanding of the principle of military necessity. For an action to conform to a plausible view of military necessity, that action must be the least lethal means to accomplish a needed military objective at this point in time and in the current circumstances, or temporal and special conditions that are very close to the actual ones at the moment. It is simply too easy to be allowed to say that some time in the undetermined future this war, like all wars, will be for the best if it is ended more quickly than not. And indeed, such a principle would not be accepted by Just War theorists or international legal theorists either, since it is possible simply to drop an atomic 12

See Michael Walzer’s fascinating discussion of this case in Just and Unjust Wars.

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bomb on a region, or poison the water supply of a region, and obliterate all of the enemy soldiers therein. Yet, various types of weaponry are seen as illegal or immoral regardless of the fact that they will bring a war to a conclusion very quickly indeed. And we certainly do not want a principle of military necessity that is so strong that it makes it impossible to fight justified wars of any sort. Contingent pacifists should not argue for ruling out in advance the possibility of justifiably fighting in any war. There seem to be at least some conceivable worlds where it would be justified to kill enemy soldiers for a needed military objective. The strategy that I have pursued is to try to find a reasonable principle of military necessity that neither allows every action in war, nor rules out every action in war. Of course, there are many points along the spectrum between these two extreme positions of the supporter of Kriegsraison and absolute pacifism. I remain open as to precisely where to draw the line along this spectrum. What seems to me to be clear though is that the line needs to be drawn somewhere in the middle rather than at either end of this spectrum. One other thing to say about the question of how a commander is to ascertain whether it is militarily necessary to do a certain action is that the commander need only consider possible worlds that are close to the actual here-and-now world the commander currently occupies. In this respect, I am adapting David Lewis’s idea of counterpart analysis.13 To ascertain if something is possible or necessary in a practical sense, we need only consider possible worlds that resemble our world “closely enough.”14 In a sense, to talk of what it is possible or necessary to do is to talk of what are vicarious experiences for a given agent here and now. To say that it is possible that I regain my fluency in ancient Greek, is to say that it is vicariously so in some world that is close enough to the actual world that I occupy here and now. To say that it is necessary that I employ a certain tactic in an armed conflict is to say that it is vicariously so in all worlds that are close enough to the world that I occupy here and now. In the second case, the commander need not think beyond what is conceivable, understood in this way to be close enough to the commander’s actual world here and now. This is to say that possible worlds are counterparts to this world insofar as they are vicarious worlds for me. And to say something practically relevant about what is possible or necessary for me is to say what is vicariously experienced in worlds that are close enough to my actual world here and now. This analysis has not yet said where on the spectrum to locate decisions about what is possible or necessary but it does locate the point along the spectrum as those 13

14

David K. Lewis, Counterfactuals (Cambridge, MA: Harvard University Press, 1973), pp. 39–43. I adapt Lewis’s counterpart analysis so as to make it relevant for practical decision-making since in this chapter I am concerned with practical necessity, not logical or metaphysical necessity. Ibid., p. 39.

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points that are “close enough” to my actual world here and now. The “here and now” is a way to make a bit more conceptual sense of the Grotian dictum that what counts is what satisfies contextual considerations of imminence and immediacy. The tricky questions of course are what “close enough” means and who is to make that decision. My answer to both questions is to restrict our domain to the commander on the ground and only to stipulate that while it is the commander who is to determine how to understand “close enough,” he or she is to do so bound by considerations of what a reasonable commander in this commander’s shoes would agree to.15 IV

Revisiting the moral equality of soldiers

Since Michael Walzer’s book, Just and Unjust Wars, many philosophers have argued that all soldiers, by virtue of their roles, have the same status: namely both the right to kill and the liability to be killed. Recently philosophers have argued that there is no equality among soldiers in armed conflict. Soldiers on the unjust side of a war have no right to kill, but are liable to be killed. Soldiers on the just side of a war have the right to kill and no liability to be killed.16 My view is that soldiers all have roughly the same minimal moral status, but not of the sort that Walzer argued for. Rather all soldiers have the right not to be killed unnecessarily, and also the liability to sanction if they violate the rights of other soldiers, even enemy soldiers. Since I argued in favor of the right in the last section, I will begin by arguing in this section that it is an equal right of all soldiers. I will then argue that there is also a corresponding equal liability for all soldiers who violate the right of soldiers not to be killed unnecessarily. Many philosophers and legal theorists today deny that there is a moral equality of soldiers. One way to understand this position begins from the plausible assumption that one’s moral status varies based on whether one is engaged in rightful or wrongful behavior. It matters whether one has a right to act a certain way, or fails to have such a right. A bank robber, by virtue of choosing to rob a bank, does not any longer have the strong right to kill a police person who is shooting at the robber to prevent the robber from escaping or to stop the robber from killing the police person. My view is that all soldiers have roughly the same rights and liabilities because it is normally so difficult for a soldier to figure out if the war he or she is fighting in is a just or unjust war. There are cases where it may be easy to do this or even where a soldier has already figured it out, but as I have argued 15

16

Appeals to a reasonable-person standard are ubiquitous in both law and moral philosophy. I will try to put a bit more meat on these bones, even as I recognize that any attempt to explain what a reasonable person would do is already to allow in one’s own biases, as is clear when a juror is asked to do what a reasonable person would do. The classic work in this “revisionist” Just War theory is McMahan, Killing in War.

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in the previous chapter these are very few cases indeed. In any event we should not merely attribute the injustice of a war to a soldier, given that what made the war unjust was the decision of a State, not a decision of that soldier. The right not to be killed unnecessarily is important for showing respect for the person who occupies the role of soldier. Even if one were to think that some soldiers (who are on the unjust side of a war) have forfeited some of their basic general rights, there are two other considerations that are important. The first is that the soldier may have special rights connected to the soldier’s vulnerability that must be taken into account. The second consideration is that while it is possible to forfeit one’s basic rights, at least temporarily, one cannot forfeit one’s basic rights permanently without ceasing to be human. I wish now to take up this second consideration. Let us again distinguish between the general rights of all humans and the special rights of those who occupy various roles, such as that of being a soldier. Soldiers, qua soldiers, do not have human rights, since “soldier” is a role not a person. But those who occupy the role of soldiers are humans. That those occupying the role of soldier are humans sets a minimal standard for how these humans are to be treated as soldiers. The standard is that those who occupy the role of soldiers must be treated in a way that respects their dignity as humans. My view is that recognizing the right of soldiers not to be killed unnecessarily is one of the best ways to respect the dignity of soldiers. It is not sufficient that soldiers be recognized as having the right not to be made to suffer unnecessarily, which is the traditional way to understand the rights of soldiers. This is not sufficient given the vulnerabilities that soldiers face. It is true that humans are more than normally vulnerable to suffer when they occupy the role of soldier. But it is even more significant that humans are much more than normally vulnerable to be killed when they occupy the role of soldiers. Killing in war is more significant for a soldier than is suffering in most cases for soldiers because of the way war has been understood for centuries, namely in part as a conflict between groups that engage in lethal violence against each other. And while the attempt to kill an enemy soldier may wound that soldier instead and cause suffering, the killing of the soldier has been the objective. There are other cases where a soldier is intentionally made to suffer as a matter of retaliation, or of causing the soldier to answer questions under interrogation, where the suffering is intentional and in most cases cruel since this suffering is not necessary for achieving the objective. Such cruelty can be as significant as death for the soldier. And it is also true that just as making soldiers suffer in retaliation is rarely necessary for securing a military objective, it is also true that intentionally killing a particular enemy soldier is rarely necessary for achieving a military objective either. As one can see from such nineteenth-century documents as the St. Petersburg Declaration, war has been sometimes understood as being primarily about

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incapacitating rather than killing since most frequently it is incapacity of enemy soldiers rather than killing them that is directly related to achieving needed military objectives. In any event, the key consideration that has made it nearly universally accepted that soldiers should not be made to suffer unnecessarily is the fact that it is indeed unnecessary. If it is also true that much killing in war is also unnecessary for achieving a needed military objective, then for similar reasons it should be universally accepted that soldiers should not be killed unnecessarily either. The minimal moral equality of soldiers turns on this issue of a soldier’s heightened status as vulnerable to both suffering and death due to the nature of the role the soldier occupies. All soldiers are humans, and minimally soldiers should be shown respect for their dignity by being recognized as having the right not to suffer unnecessarily or to be killed unnecessarily. The dignity of humans is tied to the intentionality of humans. There are at least two major ways that the intentionality is denied to soldiers – by forcing them to suffer and by forcibly killing them. Because of their intentionality, suffering and killing is more significant than it is for other sentient beings. But even if one denies this last point, nonetheless because of the self-consciousness characteristic of humans’ intentionality, both suffering and death are very bad indeed even if they are not the absolute worst thing that creatures can suffer. The moral equality of soldiers turns on the moral equality of these features of all humans. While soldiers may be treated differently from one another in many respects, due to what those soldiers deserve for instance, it is minimally required that soldiers not be treated differently from one another by virtue of their dignity. To treat them unequally in this respect, where one human or group of humans is denied the minimal moral treatment that respecting their dignity requires, is to treat this human or group of humans as not fully human. For many centuries soldiers were referred to as cannon fodder, or by some equivalent expression. The idea was that soldiers were dispensable.17 Soldiers could be killed at will by enemy soldiers because they were primarily only extensions of their king or their State. Notice that the rhetoric of the use of the term “cannon fodder” displays the way that the traditional view of soldiers effectively denied their humanity. To respect soldiers, this practice needs to stop. My proposal to recognize the equal right of all soldiers not to suffer or be killed unnecessarily is aimed at just this objective. Human rights in general protect humans from the factors that would affect what is the characteristic life of a human. In this respect, as I said, human rights protect human vulnerability independent of special situation or role, or at least if such things are taken into account they are not the main basis of what is protected by the human right. Human rights fall into the class of general rights: 17

See Blum, “Dispensable Lives of Soldiers.”

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they do not vary from human to human or on the basis of time or place. Special rights are different in just this respect: special rights vary according to changed circumstance and indeed derive their substance from the specific changes in circumstance that increase vulnerability not for all but only for certain members of the human race. We should also distinguish between general and special vulnerabilities. All humans are vulnerable due to their capacity for higher-order thinking as well as for their ability to engage in long-range planning. But certain classes of humans are also vulnerable because of the type of work they do or because of the kind of situation they are most likely to face. These special vulnerabilities are ones that give rise to some special rights, especially in the context where protection is needed.18 Special rights and vulnerabilities vary especially according to different roles that are assumed by a given person. One might wonder whether it matters that the roles are voluntarily assumed or that the roles are thrust upon the person in question. I will here say something brief about this complex topic which I explored in the last chapter as well, recognizing that a fuller treatment is ultimately necessary for a defense of the idea of special rights. In some cases, it might seem that the voluntary assumption of a dangerous role should not warrant special rights protections since the person in question has waived or forfeited any claim to special rights. Some have argued that soldiers and other combatants forfeit certain of their rights, including some of their human rights, by serving in the military, whether conscripted or not. In this view, the assumption of a role that makes soldiers dangerous to others, especially civilians, means that even their basic human rights, such as the right to life, have been forfeited, at least temporarily. This view is not one that I endorse, but that I will not here contest. But I have argued that there is a strong right not to be killed unnecessarily that cannot be forfeited. V

The risk of unjustified killing even in a just war

Even if a soldier is sure that he or she is fighting in a just war, and the enemy is on the unjust side, there are other human rights problems to consider.19 If one assumes that the general moral equality of soldiers is undermined,20 it also 18

19 20

See Robert Goodin, Protecting the Vulnerable (University of Chicago Press, 1985); and Paul Formosa, “The Role of Vulnerability in Kantian Ethics,” in Catriona Mackenzie, Wendy Rogers, and Susan Dodds (eds.), Vulnerability: New Essays in Ethics and Feminist Philosophy (Oxford University Press, 2014), pp. 88–109. See Bazargan, “Complicitous Liability in War.” I make this assumption for this section of the book, even though, as I have argued, I do endorse a version of the moral equality of soldiers thesis.

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seems to be a mistake to treat all unjust soldiers, or to treat all just soldiers, the same way morally. In this context, let me turn to Jeff McMahan’s ideas on this topic. He states: “If harming a person is unnecessary for the achievement of a relevant type of goal, that person cannot be liable to be harmed.”21 Yet, if a person is not liable to be harmed or attacked, then normally it cannot be the case that another person may legitimately harm or attack this person. If it can be shown that it is unnecessary, in order to achieve a certain military objective, to harm or kill certain unjust combatants, then the just combatants cannot use tactics that indiscriminately attack the unjust side’s soldiers, because they risk attacking people who are not liable to be attacked. This brings us back to our earlier discussion in this chapter about the right of all soldiers not to be killed unnecessarily. It is not very likely that specific individual soldiers, fighting on the unjust side of a war, must be killed in order for other particular soldiers, fighting on the just side of a war, to achieve their morally good effects. Some individual soldiers are not threats at all. And some individual soldiers, even if threats in some sense, are not threats to the particular soldiers who are assaulting them. In addition, even if they are threats, it is not necessary that most enemy soldiers be killed in order for soldiers fighting on the just side of a war to achieve their good objectives. Even if the objective is to win a just war, it is not justifiable that certain enemy soldiers be assaulted or killed, since it turns out that their being killed is often not necessary for the accomplishment of the morally good goals of a just war. For a soldier to be justifiably killed for his or her participation in war, even if this is a so-called unjust combatant, such participation must be not only necessary but also proportionate in that it is commensurate with the consequence – his or her death. In many contemporary situations soldiers cannot reasonably claim that killing enemy soldiers is necessary, and then they would violate the soldier’s right not to be killed unnecessarily if they participated in practices that risked killing him or her. Several points are relevant to the argument of this section of the chapter. Individual soldiers, or even groups of soldiers, will often not have to use lethal force to stop a threat from enemy soldiers. A literature has grown up that indicates that in many situations lethal force needs to be supplemented by non-lethal force, such as international alliances as well as domestic and international public opinion, in order to stymie enemy soldiers. Indeed, non-lethal means have surpassed lethal means “for achieving national strategic objectives.”22 And with the rise of sophisticated technologies, it is no longer true that all soldiers are equally dangerous threats. Indiscriminate lethal force against enemy soldiers looks increasingly unjustified.

21

McMahan, Killing in War, p. 9.

22

See Blum, “Dispensable Lives of Soldiers.”

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In many situations it is not necessary indiscriminately to kill enemy soldiers in order to stop them from threatening the lives of soldiers fighting on the just side of a war. Let us return to the example of the Highway of Death. Retreating soldiers are not normally threats in the right way – that is in terms of imminence and immediacy. And if this is true then it would violate their rights not to be killed unnecessarily to kill them. Indeed, killing large numbers of enemy soldiers just because they are enemy soldiers, or might in some possible world pose a threat, fails to distinguish soldiers who are truly threats from those who are not, and this fails to treat those who are soldiers with the respect they are due as fellow humans. So, in addition to worries about the relevance of the wrongful participation of a threat during war, there are also worries about whether it is necessary to kill even those who are clearly fighting an unjust war in order to stop so-called unjust soldiers considered as a group. Such necessity constraints have been part of the Just War tradition for many centuries, although rarely have they been interpreted the way that I have been arguing in this chapter. In addition, even if we are to reject the general doctrine of the moral equality of soldiers, where this normally means the moral equality of those on the just side and those on the unjust side of a war, we should accept the minimal equality of soldiers as I argued earlier and we should question the moral equality of different groups of soldiers who fight on the same side of a war. And here war itself is open to serious challenge by contingent pacifists. Even high-tech wars with precision guided missile systems will not be easily able to guarantee that in a just war only those soldiers killed are those who are posing an objective threat and of whom it can be said that it is necessary to kill them. Some of the considerations that tell against the moral equality of treating soldiers on both the just and unjust sides of a war the same, also tell against treating all soldiers on the unjust side the same as well. If what makes soldiers liable to be attacked is the threat they pose, then fine-grained determinations need to be made among soldiers, and such determinations make support for fighting in even just wars, where enemy soldiers as well as civilians are normally killed indiscriminately, very difficult to justify because of a concern that those who are innocent not be killed. One last point about the debate concerning the moral equality of soldiers is important for the moral risks of participation in war. Several theorists have argued that there are rarely good excuses open to soldiers who fight, and kill, those enemies who have just cause. It is for this reason that many, Jeff McMahan and Tony Coady most notably, argue for selective conscientious refusal to fight for those who suspect that the war they are told to fight is not a just war.23 I have said a bit about conscientious refusal in an earlier section, and will devote Chapter 12 to this topic as well. What I want to note here is that by denying 23

See Coady, Morality and Political Violence, chap 11; and McMahan, Killing in War, pp. 95–103.

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soldiers various epistemic excuses for fighting in wars that are unjust, these theorists should also be supportive of contingent pacifism. For when moral excuses are diminished, it certainly looks like soldiers are best advised to act cautiously and rarely if ever accede to the demands or requests of their State to fight in wars that will likely involve the killing of the innocent, for which no excuse may be available. VI

Enemy soldiers and their unjust states

Enemy soldiers and civilians are humans who generally have rights of the same sort as their adversaries. If the enemy State fights a war that is unjust, this may affect the status of the soldiers and at least some of the civilians who participate in or support that unjust war. Notice that in war the enemy is strictly speaking a State, or non-State actor, not an individual soldier or civilian. But we should distinguish the moral status of soldiers from that of their States. Of course there is some link between a soldier and the soldier’s State. But the strength of the link will depend on an assortment of factors, most especially whether the soldier has been conscripted or volunteered, as well as whether the State hid its true reasons for initiating war or not. It will also matter what the reasons are for the soldier signing up to serve in the military. In many cases soldiers do not have a sense of the nuances of geopolitics and the only motivation is one of doing one’s patriotic duty. The State may indeed be engaging in aggressive war, for instance, but the soldiers that fight for that State cannot be easily ascribed the same status, namely the status of aggressors and hence of being unjust, as is true of their State. And in my view, the excuse or justification these soldiers can offer means that they cannot be subject to severe liability or sanction.24 Let’s first distinguish between volunteers and conscripted soldiers. Those who volunteer during an ongoing war seem to endorse what the State is doing in that war. Yet, not all volunteers know about the character of the war they volunteer to serve in. And some volunteers, who think they know about the character of the war, may simply be deceived by their States’ leaders. Some volunteers may not know or care anything of the moral character of the war, but may volunteer out of patriotic duty to follow their leaders. In this last case, there is a connection between the State and the volunteer soldiers, but there are still other considerations that matter as well. “Volunteering” comes in many forms, and people who volunteer for the military often do so because they do not have, or reasonably do not think they have, good options at the time. And even for those who truly have other reasonable options and nonetheless volunteer to be sent overseas to fight, their knowledge of what they are volunteering to do is often just as flawed and fallible as is true 24

I thank Saba Bazargan for this point.

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of the conscripts. Of course some of these people volunteer during peacetime only to find themselves stuck in a tour of duty when war breaks out. Showing respect for these people means giving them also the benefit of the doubt. Even those who volunteer knowing the unjust character of the war may not be as completely linked with their States as one might think. Few volunteer soldiers would think that what they did by volunteering was to waive or forfeit their right to life. Those who are conscripted do not necessarily make such an endorsement, although it will matter significantly how hard it is to resist the conscription and what are the likely consequences of resisting. In both cases there seems to be a kind of forfeiture of rights, such as in the case of a boxer who steps into the ring. But the forfeiture or waiver can only be very temporary and greatly restricted unless the rights in question are disconnected from the human who is said to have them merely by virtue of being human. I will say much more about forfeiture of rights in later sections. Those who are conscripts present the most difficult case for theorists who would diminish the rights of soldiers simply because they fight in an unjust war. Two cases need to be distinguished: the conscript who believes the war he fights in is unjust and the conscript who does not know of the nature of the war. In the latter case it is hard to hold the conscript liable in a way that diminishes his or her rights unless there is some sense that the ignorance of the conscript is due to the conscript’s culpable negligence. In the former case, what is needed is some account of what would be the consequences of refusing to accede to the conscription. The conscript who is ignorant of the nature of the war he is conscripted to fight can of course be faulted for not trying to find out the nature of the war. But this task is often very difficult and in some cases impossible for a young adult, especially in a society where the government significantly controls the media.25 What we expect people to get information about varies based on how significant the consequences are, and in war those consequences are very significant indeed. But we should not overestimate what it is reasonable for people to come to know, or even strongly believe, in the height of the build-up to war when emotions, especially of patriotism and even jingoism, often diminish rational inquiry. The conscript who knows the war he or she is conscripted to fight is unjust should of course do all within reason to avoid serving in such a war. If alternative service, such as working in a hospital as an orderly, is available, one should choose this option. But if the only alternative to fighting is a lengthy prison term, 25

On this point see McMahan’s discussion in Killing in War, especially what he says about the case where the war’s being unjust is luminously evident. My view is that there are very few, if any wars, that are luminously unjust. But what is at stake is largely an empirical issue that cannot be solved through philosophical reflection alone.

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it is not as clear that one should choose that option rather than fight in what one believes to be an unjust war. And of course what one believes to be the moral status of the war is nearly always a matter that can turn out to be wrong. So in showing respect for the conscripted soldier’s human rights in this situation, in calculating what should be his or her response to being conscripted, choosing a lengthy prison sentence over what one could be mistaken in believing is serving in an unjust war, some latitude must be extended to the conscript. In any event, being coerced into fighting in an unjust war is certainly not equivalent to murder, since mens rea is missing. Coercion is not fully exculpating, but as I will argue later it does greatly diminish the extent of one’s liability. VII

Objections

There are several significant challenges to the arguments for contingent pacifism I have set out that I will begin to respond to here and continue to deal with in later chapters as well. First, despite what I have argued, many theorists believe that soldiers and even civilians forfeit their rights when they participate in an unjust war. At least in part this is because of the objective moral judgment that no one has a right to fight in such a war and so it makes no sense to think that the normal rights that people have will apply when people do that which they have no objective right to do. It may be objectively true that no one has the right to fight in a war that lacks a just cause, but there are other considerations as well. The question is whether one is liable to severe sanctions, even death, for acting in a way that one has no objective right to. Such liability may be blunted by various excuses. Non-culpable ignorance and necessity are two of the most common that would apply in cases of soldiers or civilians who participate in an unjust war. Of even greater importance is that even if one is liable to harm or sanctions, there will be various mitigating factors that will potentially diminish the severity of sanction that one is liable to. I have an extended discussion of this issue as well as the issue of non-culpable ignorance in Chapter 6. A second objection is that the lives of soldiers should not be given the kind of status that I have afforded to them since soldiers’ lives are so completely different from normal human lives. Soldiers’ lives are indefinitely risky to others, both soldiers and civilians. This is not true of noncombatants. Soldiers have set themselves apart by taking up weapons and indicating that they are ready to use those weapons to harm fellow humans. It is thus a mistake to see the lives of soldiers, as well as their rights, as being the same as those of noncombatants.26 My response is again to say that even during war human rights need to be taken seriously. There is a difference between a plane that is “manned” and 26

See Walzer, Just and Unjust Wars.

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one that is an “unmanned” drone. The insertion of the soldier into the plane makes the decisions about what can be done to that plane very different than if it is only an “unmanned” drone. That humans are involved changes the moral landscape in highly significant ways. Humans are morally considerable, and this is true of all humans. And the human rights that are supposed to mark this moral status should not be significantly diminished in importance as long as one remains human. In any event, soldiers have not ceased to be human or significantly forfeited the human rights that attach thereby. A third objection is that there is a multitude of ways that respect can be shown for a person’s humanity. One way to do so is to treat people as responsible adults and not to infantilize them by being too quick to excuse them for the adverse consequences of their intentional actions. Soldiers who participate in an unjust war have acted wrongly and caused untold horrors by their intentional actions. Respecting these soldiers’ lives and recognizing their rights is compatible with holding them liable for the deaths and destruction that they cause. I do not disagree with the thrust of this objection. As bearers of human rights, all humans have corresponding duties connected to their rights, and we do not fully recognize and respect fellow humans if we do not expect the fulfillment of these duties as we grant them the exercise of their rights. But we should not neglect their rights by overemphasizing the duties that humans have not intentionally to harm each other. Indeed, respecting the lives and rights of soldiers means holding them to a fairly high standard of duty. But it would be odd, as we hold soldiers to a high standard of duty, not also to grant them the correlatively high status as human rights holders in the same way we do for all other humans. Fourth, today some theorists argue that the risk of killing the innocent by engaging in war and having no justification or excuse for such killing is relatively small whereas the risk of allowing innocents to be killed by not participating in war is greater.27 If the stakes are high enough, that is, if the number of possible civilian casualties is large enough from not resisting an aggressive State’s bellicose actions, there would be a more serious moral risk for the potential soldier than merely that he or she might participate in an unjust war after all.28 By not participating in the war, the soldier could risk contributing to a significant tragedy that makes her own moral risks pale by comparison. My response here is to admit the importance of the point and to modify my position so that as the need for intervention by means of war gets high, this risk should indeed be weighed heavily against the risk that the war could turn out to be unjust and the soldier faulted for killing unjustifiably. But notice that this keeps the discussion within the domain of contingent pacifism since we are still considering moral risks of participating in war. And the contingent pacifist can 27 28

See McMahan, “Pacifism and Moral Theory,” esp. 65–67. I thank Tony Coady and Massimo Renzo for pushing this objection to my views.

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still refer to the points in the previous sections of this chapter and claim that it is so unlikely that one can tell that a war is just that it remains generally better not to participate in most, if not all, wars. The contingent pacifist has a particular take on collateral damage. If one is on the battlefield and faced with a military necessity where the only avenue open is to act in a way that will surely involve civilian casualties, it is a mistake not to recognize the moral difference between such an act and the intentional direct killing of civilians. But if one is contemplating going to war, and one recognizes that by doing so one will surely find oneself in the position of unintentionally having to take the lives of civilians and soldiers, things are quite different. Here there is a sense, but perhaps not an overriding sense, in which the intention to pursue the war knowing the risk of killing civilians and soldiers transfers to the collateral damage situation. The ensuing civilian and combatant casualties are in some sense not unintended if one had intended earlier to do that which one knew would later risk requiring taking civilian lives.29 And insofar as the contingent pacifist can show the likelihood of this situation in nearly every war, the moral difference between “collateral damage” and intentional killing of civilians is at least partially undermined. I will also later challenge the importance of this distinction. Generally the risks of participating in war are very high, and the likelihood of figuring out whether one is fighting on the just side of a war is so low, that no one should feel good about participating in even what seems to be a just war. The principle of charity extends to those on both sides of a war. So those who are convinced that they fight on the just side of a war should extend to those on the other side a similar principle of charity. It is no implication of my view that somehow there is a lowering of the moral risks for those who end up fighting on the just side of a war. Indeed, in an ideal world, no soldiers should fight; and in a non-ideal world no one should blame anyone for conscientiously participating in war even as everyone is counselled not to participate. It is my view that this is the best we can hope for. Fifth, let us consider the challenge brought by those who disagree that there are unlikely to be many if any wars into the foreseeable future that one can justifiably fight because they think that wars have always been with us and in particular States have always acted aggressively toward their neighbors when they think it is to their advantage to do so. This is a standard position taken in the Just War literature today, but one that is rarely backed up by real-world arguments. The first thing to say is that I am defending a version of pacifism that is about the morality of fighting in war, not about the efficacy of doing so. So, I 29

See my book War Crimes and Just War. I am not here denying that the doctrine of double effect can do some conceptual work but rather wondering whether it can do as much work as some theorists seem to think.

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do not deny that States will continue to be motivated to threaten or actually to attack their neighbors when it seems to be in their interests to do so. I will later explain how the United Nations system has tried to make it less likely that this will happen, but I cannot deny that States will still be motivated to attack each other. What I do deny is that it is morally (or legally) justifiable for States to attack each other except in very rare cases – and the rarity of the cases, and the low likelihood that one can tell, are so great as to make it a bad moral risk in all cases. I would also point out that the actual facts are such that interstate wars have been diminishing in number and significance for more than half a century now. So, while it is doubtful that interstate wars will disappear in the near future, it is also not very likely that the trend for there to be fewer and fewer such wars will reverse itself. What this means is that the inevitability of the claim that wars have always been with us is called into question in a way that should be taken very seriously by people who are addressing the justifiability of defensive war against an aggressive State. In addition, even if it is claimed that there will be an increasing number of wars that are necessary to stop aggression or oppression, such “wars,” if they are wars at all, are very difficult to justify in any event because of the consideration of the rights of soldiers as I explained earlier and as I will argue extensively later in this book. At this point let me just raise the question of whether a military action to stop a State from oppressing its own people is indeed a war or armed conflict since the sovereignty of the target Sate is not necessarily being jeopardized. Indeed, it is becoming more common to use the term “police action” to refer to certain kinds of military actions aimed at humanitarian results but not necessarily aimed at infringing on sovereignty. A sixth challenge is that the kind of pacifism I have offered is not an especially worthy moral position to hold, especially since it is not driven by an inprinciple objection to war. Contingent pacifism seems to be supported, according to this challenge, merely by a kind of cost-benefit analysis of the most simplistic form. And while it may be that this is still a defensible position to hold, it is not the kind of view that can be strongly recommended to people who care deeply about morality. And yet it is just this kind of strong principled appeal that has been the hallmark of pacifism and can be seen as the reason why many have been tempted to support pacifism in the past. My response to this challenge is to agree that contingent pacifism will not recommend itself to people in the same way that traditional pacifism did, although there is a sense that it is nearly supported by some Just War theorists.30 30

The human rights approach taken by David Rodin, Tony Coady, and others actually dovetails nicely with the contingent pacifist position, as Rodin and Coady have recently come to see as well, even if they have not fully embraced contingent pacifism. See David Rodin, War and SelfDefense (Oxford University Press, 2000); and Coady, Morality and Political Violence.

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The rights approach taken by these theorists is an in-principle position, although clearly a different one than that which has been embraced by traditional pacifists. This view highlights the important point that it is morally wrong for one State to act aggressively toward another State, and the wrongness can be seen especially in that killing when unjustified is one of the worst things that a person can do. Contingent pacifists are not like their earlier cousins who hold the absolute principled view that all soldiers act wrongly by participating in war. Rather contingent pacifists simply urge that soldiers do that which involves the least moral risk. In most, if not all, wars the morally less risky thing to do is not to participate in war. For two thousand years, the idea of a Just War has animated our discussions of the morality of war. Today, those who defend newer versions of the Just War position need to take account of the newer versions of pacifism, just as the traditional Just War adherents defined themselves by reference to older versions of pacifism as well.

6

Innocence and complicity

For Just War theorists and pacifists, one of the crucial considerations that both groups have agreed on is that those who are innocent should be spared even during wartime. And there is general agreement as well that those who are in some sense complicit lose their innocence. What theorists have not agreed on is who counts as the innocent, or how complicity and innocence are related. In very recent debates, the issue of who is innocent has resurfaced in a somewhat different form. Innocence is understood in terms of lacking liability to be killed or harmed.1 I will spend time in this chapter reassessing the category of innocence to see which persons should be included in it, and what liability follows from such ascriptions. At the end I will argue that one can be complicit in a wrong or harm and yet still be innocent in the sense that one is not liable to be killed or punished, and this is also how we should understand most civilians and combatants in wartime. One question to ask initially is why it should make so much difference whether a person is innocent or not in terms of whether that person can be justifiably killed. Could it be that one is innocent and also complicit, and if so how does this hybrid status affect liability to suffer sanctions? In human rights terms, everyone has a right to life regardless of what one’s status is, innocent or not. Some people have been seen as having their rights diminished, at least temporarily, because of their status. In this chapter I will take up the relationship between innocence and complicity and the connection of both to liability to sanction or attack in some detail. I argue that complicity does not necessarily negate innocence. In the first section I will discuss how the conditions for a determination of innocence have changed over time. In the second section I will discuss Oedipus as an excellent example of how the idea of innocence changes in the ancient 1

Liability has been the term used in law to refer to what was at risk for a defendant: punishment or compensation due to the complaining party. Recently in the Just War literature, liability refers to what can be legitimately done to a person, especially where that person is a threat. Here liability is understood in terms of being legitimately subject to being attacked or killed.

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Greek period and how it provides interesting lessons for today about how to understand the relationship between innocence and complicity. In the third section, looking now to the case of Orestes, I will draw on the ancient Greek model of understanding criminal guilt to see how to reconcile the ideas of innocence and complicity in the same person. The Greek cases are introduced to provide a model for how subjective and objective status can be kept separate. In the fourth section I will discuss the relationship between complicity and liability, arguing that there are degrees of complicity as well as a range of liabilities associated with complicity. In the fifth section I will consider a category of actors who are complicit in the war effort, namely medical staff and other aid workers who in some significant way support the war effort, and are hence complicit in that war, even as they do not carry arms. I argue that the complicity of these humanitarian aid workers does not make them liable to attack, regardless of which side they aid. In the sixth section I consider collective complicity cases that concern an organization that is complicit in such things as the waging of an unjust war. In the seventh section, I will discuss to what extent certain classes of civilians may be complicit yet innocent and hence not to be targeted for assault. This last category is especially troubling because it may also be true of soldiers, and if many soldiers or combatants are innocent during war, it becomes very difficult to justify most wars.

I

Changing conceptions of innocence

Let us start with several ways that innocence can be understood in criminal law. Innocence can be understood in criminal law as equivalent to “not guilty.” Here it is important to distinguish between those who are not guilty because they have not been convicted of a crime, and those who are not guilty because they did not commit a crime. The set of people who have not been convicted of a crime is different from the set of people who have not committed a crime. Some people who have not been convicted have gotten acquitted on a “technicality” in that their acquittal is not based on whether they did or did not commit a crime but on the failure of the prosecutor to make a case that convinced the jury beyond a reasonable doubt of the person’s guilt. In addition, there are unfortunately cases of people who have been convicted of a crime who did not commit that crime. Such cases are often called cases of “actual innocence,” where a person’s actual innocence, even when discovered, is not always sufficient for their acquittal from being legally guilty.2 2

See Larry May and Nancy Viner, “Actual Innocence and Manifest Illegality,” St. Louis University Law Journal, 49/2 (2004), 481–97.

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Innocence can also mean free from moral stain or taint. The ancient Greeks were quite taken with the idea that innocence is not merely about what a person has intentionally done, and hence what makes one free of guilt, but about what one has merely done by one’s own hands. This comes closer to a kind of objective innocence that we will discuss later where one’s status is linked to liability independent of guilt. Innocence of this kind is also similar to the idea of those who are free of sin. In some religious traditions, everyone is born with “original sin” and in that sense not fully innocent until by the grace of God the sin is somehow expunged or at least diminished. One common understanding of being innocent is that a person is not a perpetrator of, or even complicit in, a crime or wrong. But for some ancient Greek writers, especially for Homer and Hesiod, one could lose one’s innocence by being polluted or tainted due to being associated with something that is bad or wrong, and yet the person is not even fully complicit in it. It appears that initially this is merely being unclean in a way that makes the gods displeased at one’s sight, perhaps in a very literal way. Arthur Adkins says that pollution (miasma) “is dirt, real physical dirt, which must be removed before a man may pray to the gods with any expectation that they will listen to him, and this is the only ‘pollution’ which Homer knows.”3 Later, and certainly by the fifth century BC, those who killed were said to be polluted or tainted in a way more similar to a modern moral sense – namely, connected to what they wrongly did. But just a century earlier, those who killed or wronged, but clearly unintentionally, were seen as polluted also in a moral sense. Think of Oedipus, who unintentionally committed a parricide as well as incest and was seen as so polluted that he was forced to flee from town to town since people were afraid that associating with his pollution would pollute them. Oedipus could not wash off the pollution – it seemed to be indelible. And the only way for other people to avoid becoming polluted by someone already polluted was to exile, or kill, him or her.4 Understood as indelible stain, pollution or taint seems utterly irrational to many people today. If it is not Oedipus’ fault that the woman he slept with turned out to be his mother, or the person he killed turned out to be his father, it seems hard to understand why he should be held to account for these harmful acts, at least held to account for violating the taboos against parricide or incest. But, as I said earlier, at least for the Greeks, there was not a connection between pollution or taint, on the one hand, and fault or guilt, on the other hand. While using the Greek terms here I am influenced in my understanding of taint by Karl Jaspers’s discussion of a kind of responsibility he calls “metaphysical

3

Adkins, Merit and Responsibility, p. 86.

4

Ibid., p. 92.

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guilt” that attaches on the basis of who one is.5 The kind of accountability or responsibility involved in cases of pollution or taint is not so easily dismissed as being implausible since it does not necessarily imply that one is guilty or at fault in a normal modern sense, but seems only to speak to one’s causal or metaphysical status. It may be true that someone like Oedipus has been tainted by his acts of incest and parricide such that he is no longer innocent in the way he was prior to engaging in these acts. Here loss of innocence is connected to having fallen out of a past state where one was not causally associated with what is bad or wrong. This loss of innocence has both a non-moral and a moral meaning. The non-moral meaning is that one is no longer pure in the sense of not having been touched by what is bad or wrong in the world. The moral meaning has to do with the judgment that there is something wrong with the new state that one is in. And if the new state is due to one’s own agency, whether intentional or not, then there is also something potentially wrong with the person who is thereby polluted. I will later argue that a certain sense of pollution can be defended today. In a sense it is highly objectionable to say that someone who has been unintentionally polluted has also done something morally wrong – a kind of blaming the victim. But someone like Oedipus is not the standard kind of victim since he has in fact done something to bring about his current polluted state. There is something he did by his own hands, not merely something that was done to him, which makes him now not innocent. In the next section we will look at Oedipus more closely to see what the competing conceptions of innocence involve. Before turning to a more detailed examination of Oedipus, it might be useful to conclude this section by thinking of four distinct senses of innocence. First there is the innocence of someone who is completely pure in the sense of being untouched by what is bad or wrong. We will see an example here of people in Athens who worried that allowing Oedipus, who was polluted, to enter their city would make Athenians no longer innocent. Second, there is the sense of innocence of someone who has not done anything that has brought him or her into contact with what is bad or wrong, or more properly one has not by one’s agency brought something bad or wrong into being. Oedipus is told that he is no longer innocent because of his unintentional acts of sleeping with his mother and murdering his father. Third, there is the sense of innocence, more commonly thought of today in criminal law, where one has not intentionally 5

Karl Jaspers, The Question of German Guilt, trans. E. B. Ashton (pseud.) (New York: Doubleday Press, 1948). Also see Larry May, “Metaphysical Guilt and Moral Taint,” in Larry May and Stacey Hoffman (eds.), Collective Responsibility (Savage, MD: Rowman & Littlefield, 1991), pp. 239–54.

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brought about something bad or wrong. Fourth is the sense of innocence of someone who is not a threat to the self-defense of another person.6 I will turn to this fourth sense later in the chapter. One of the most interesting discussions of these topics concerns whether or not the first two senses are still used, and should be used, in the way we think of moral responsibility today. Arthur Adkins claims that the ancient Greeks lacked a conception of moral responsibility because they did not distinguish between what one has done and what one intended to do. Bernard Williams and other writers argue that the Greeks had a plurality of senses of responsibility, some of which correspond to our modern notions of moral responsibility. In the next section this debate will again be joined as we consider whether and to what extent Oedipus is morally responsible for what he has caused. II

The case of Oedipus

Sophocles’ play Oedipus Tyrannus begins with Oedipus describing himself as “renowned to all” (kaloumenos).7 He is soon joined by Creon who says he has been ordered by Phoebus to “drive out from the land a pollution (miasma)” that has stained the city because of the murder of the king, Laius.8 Here is a brief set of passages from this play: oedipus With what means of purifying? What is the nature of the trouble? creon By banishment, or by repaying killing with killing, since it is the bloodshed that has brought the storm upon the city. oedipus And who is the man whose fate he is revealing? creon King Laius was once lord of this land, before you guided it. oedipus I know from hearsay, for I never saw him. creon He was killed, and the god now tells us plainly to punish his killers, whoever they may be. oedipus Where in the world are they? Where shall the track of an ancient guilt, hard to make out, be found?

In this passage we have both pollution and ancient guilt referred to in the same context. The term ancient guilt here is really ancient cause (aitias). As Bernard Williams argues: “Aitias indeed here refers to a crime, but in its role as a cause, 6

7

8

Or some may want this fourth category to be widened to include “those who have not done anything to lose their moral right to be attacked or killed.” I do not use this formulation, even though it is closer to that in common use by revisionist Just War theorists, because I find the idea of losing one’s moral rights to be killed to be highly problematic, as I have argued. Sophocles, Oedipus Tyrannus, in Sophocles, vol. I: Ajax, Electra, Oedipus Tyrannus, ed. and trans. Hugh Lloyd-Jones, Loeb Classical Library 20 (Cambridge, MA: Harvard University Press, 1994), p. 327. Ibid., pp. 335–37.

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not as something complained of.”9 Indeed, there is nothing anyone has complained of, and that, says Williams, is the problem that needs to be solved. “What links the ancient cause and present pestilence is miasma, pollution, and what has attracted it, as the oracle has already said, is the murder . . . Miasma was incurred just as much by unintentional as by intentional killing.”10 Pollution has occurred as if it were caused by something like a past guilty act, but if there is anything like guilt it is clearly unintentional given how the rest of the play unfolds. At a crucial point in the play, the Chorus tells Oedipus of a blind man, Tiresias, who knows the person that killed king Laius. Oedipus has Tiresias summoned and he tells Oedipus “you are the unholy polluter of this land!”11 Oedipus then has the judgment confirmed from several other sources that he is the one who killed the king, and that the king was his biological father, for it turns out that Oedipus had been taken from his crib and presented to another king who raised Oedipus as his own. And it also turns out that the woman that Oedipus married was his biological mother as well, thus completing the prophecy of how Oedipus was destined to be a breaker of the taboos against parricide and incest. Here are Oedipus’ own words once he has learned who his biological parents were. Without the knowledge of my mother and my father I went to Pytho, and Phoebus sent me away cheated of what I had come for, but came out with other things terrible and sad for my unhappy self, saying that I was destined to lie with my mother, and to show to mortals a brood they could not bear to look on, and I should be the murderer of the father who had begat me . . . who now could be more miserable, and who more hateful to the gods . . . And am I polluting the bed of the dead man with the hands by which he perished. Am I a criminal? Am I now altogether unholy . . . may I vanish among men before I see the stain of such a disaster come upon me!

So, in this scene Oedipus sees himself as a bad person (kakos), a criminal, who is hateful to the gods since he is unholy (anagnos) for what he has caused even though it was unintentional. And the stain (kalid) that has befallen Oedipus can only be removed if he vanishes into exile. Bernard Williams, commenting on the Oedipus story we have just rehearsed, says that the question arises about whether the pollution and stain here are merely “a magical belief in blood guilt.”12 To which he responds: “Certainly not: we understand it because we know that in the story of one’s life there is an authority exercised by what one has done, and not merely by what one has 9 10 12

Bernard Williams, Shame and Necessity (Berkeley: University of California Press, 1993), p. 58. 11 Sophocles, Oedipus Tyrannus, p. 359. Ibid., p. 59. Williams, Shame and Necessity, p. 69.

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intentionally done.”13 Williams goes on to discuss what the appropriate reactive attitude is toward things that we unintentionally bring about by our own hands. This is not just a regret about what happened, such as a spectator might have. It is an agent’s regret, and it is in the nature of action that such regrets cannot be eliminated, that one’s life could not be partitioned into some things that one does intentionally and other things that merely happen to one.14 Williams, in my view, correctly indicates that modern theorists also find it appropriate for many acts that are unintentional to bring about an ascription of responsibility, although normally not criminal responsibility. And the terms of pollution and stain are merely the markers not for character flaws but for a form of responsibility. And yet the term pollution is not a reference to something magical that we should readily reject. There has been a spirited debate about how we should understand, and evaluate, the claims about agent regret that Bernard Williams ascribes to the grieving Oedipus. Many have sought to diminish the importance and even the salience of agent regret as a moral category related to responsibility. Yet, there does seem to be a kind of complicity that attaches to these cases that generate agent regret. I will come back to the issue of complicity later in the chapter. Now, I wish to end this discussion of Oedipus in two ways, first by looking to the end of Oedipus Tyrannus and then by looking to the beginning of Oedipus at Colonus, the successor play to Oedipus Tyrannus. At the end of Oedipus Tyrannus, Oedipus asks if he can take his children with him as he goes into exile. But Creon says, “Do not wish to have control in everything! Power to control did not accompany you through all your life.”15 Here we see Creon making it abundantly clear that Oedipus has suffered because of things that were not under his control, although Oedipus was still the agent of what occurred. And the Chorus then sends us off with this message: see to what a storm of cruel disaster has come Oedipus here, who knew the answer to the famous riddle and was a mighty man, upon whose fortune every one among the citizens used to look with envy! So that one should wait to see the final day and should call none among the mortals fortunate, till he has crossed the bourne of life without suffering grief.16

The idea is that anyone, no matter how lucky, can suffer the kind of misfortune that marks or taints the rest of one’s entire life and makes one feel at least causally responsible for the effects of one’s unintentional acts. In Oedipus at Colonus, Oedipus is asked to account for his exile that left him wandering for most of his life. At the beginning, Antigone describes what 13

Ibid.

14

Ibid., p. 70.

15

Sophocles, Oedipus Tyrannus, p. 483.

16

Ibid.

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Oedipus did as “unwitting.”17 The Chorus then asks Oedipus if he was indeed guilty of murdering his father. chorus You killed . . . oedipus I killed, but I have . . . chorus What is this? oedipus . . . a plea in my defense chorus What plea? oedipus I will explain! I murdered and slaughtered as the victim of the power that sent me mad, but according to the law I am clean! It was in ignorance that I came to this.18

A bit later Oedipus declares: “I have suffered, Theseus, cruel wrong upon wrong.”19 Here he uses the term kakos, wrong, to describe what has happened to him, not what he is, when in Oedipus Tyrannus he had called himself kakos. So, by the end of his life, Oedipus seemingly comes to the realization that he had not done wrong by killing his father and marrying his mother since he did not do these things knowingly or intentionally. Notice, he does not deny that he did these things, but he only denies that it was wrong for him to have acted in this way, to have broken the taboos, at least as would be recognized by the criminal courts. And Oedipus asserts that rather it is he who has been wronged by being unjustly exiled. Since he was fated to do what he did, he was the victim rather than the perpetrator or someone complicit. He has been wronged; and he is not the one who has done wrong. He is innocent of guilt even as he is properly said to have been stained by his acts. In this section we have seen one very early way that the concepts of pollution, stain, wrong, and guilt have been understood. By understanding the complex relationship among these concepts, the first three ways in which a person can lose innocence have been given more substance. Perhaps the ancient Greeks were too influenced by the ideas of pollution and stain to have a completely acceptable conception of moral responsibility. But there certainly was an understanding that having become polluted, even by one’s own hands, does not make one guilty and hence liable to be punished. III

The case of Orestes

As ancient Greece struggled with how to understand the proper response to killing, there were two parallel mechanisms developed. One mechanism concerned “public opinion” – here the killer was seen as polluted by the blood on 17

18

Sophocles, Oedipus at Colonus, in Sophocles, vol. II: Antigone, The Women of Trachis, Philoctetes, Oedipus at Colonus, ed. and trans. Hugh Lloyd-Jones, Loeb Classical Library 21 (Cambridge, MA: Harvard University Press, 1994), p. 441. 19 Ibid., p. 483. Ibid., p. 477.

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his or her hands. For such a person to be accepted back into Athenian society purification must somehow be achieved and there was a court system for accomplishing that goal. In addition, there was the fledgling mechanism of criminal trials at the Areopagus – here an accused murderer was confronted with the evidence against him or her and was judged either guilty or innocent by a “Council composed of the most honored of society’s representatives.”20 It is especially interesting for the topics of this chapter that in ancient Athens guilt was separated from pollution. At the end of a trial “at which bloodshed was pronounced justified and the defendant ‘not guilty,’ he or she still had to be ritually purified because of the spilled blood.”21 One way to think of these parallel tracks in ancient Athens is that innocence on the one hand, and perpetration or complicity on the other hand, were treated separately. One could be judged innocent by the Areopagus court and yet still be seen as a perpetrator or as complicit in the sense that one needed to be purified because of the fact that by one’s own hands blood was spilled. And to mark this difference, two different proceedings were conducted: the criminal trial and the trial concerning the purification ritual. Let me say just a bit more about pollution and purification. As Margaret Visser has put it, “the most important point of all about pollution – in real life as in myth – is its connection with truth, its dogged insistence on the fact than an unacceptable deed had been done, its refusal to be sidetracked by considerations of motive.”22 I would add that it is even more important that the society did not want to be sidetracked by a person’s intentions or even awareness of what one had done. To make more sense of how innocence and complicity can be related, I will next turn to Aeschylus’ Eumenides, where Orestes finds himself having to deal with the two different things that are said to follow from his killing of his mother Clytemnestra. These two things are the guilt and the pollution that are the centerpieces of Aeschylus’ play. Aeschylus developed these ideas in a somewhat different way from how these ideas were developed by Sophocles in his plays about Oedipus. In the Eumenides, we have supposedly the first reported trial in history. The Furies have been pursuing Orestes for having killed his mother, Clytemnestra. The Furies aim to enforce the sanctions for the pollution that attaches to anyone who kills a fellow human being. Orestes appeals to Athena for justice on the basis of his claim that his act of killing was justified. Apollo steps forward to defend Orestes against the charge of his guilt, but initially the Furies complain that Apollo thereby is “exercising total power, beyond what justice 20 21

Margaret Visser, “Vengeance and Pollution in Classical Athens,” Journal of the History of Ideas, 45/2 (April–June 1984), 193–206 (194). 22 Ibid., 200. Ibid., 195.

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allows.”23 Apollo responds by criticizing the Furies for focusing so much on pollution that they do not consider the full circumstances that led Orestes to kill his mother, especially the fact that his mother had just murdered his father, Agamemnon.24 There are two conceptions of justice in this play, one concerning what a person has done by his or her own hands, and the other concerning whether or not one has a justification or excuse for what one did. The latter is the subject of the criminal trial; the former is the subject of the vengeance of the Furies. The Furies claim to practice “straight justice” and to “present themselves as upright witnesses in support of the dead.” But in the same speech the Furies say that their role is as “avengers of blood upon the killer.”25 Athena convenes a jury and the Furies are cast as the prosecutors, but the trial quickly comes to center on the question of whether Orestes acted under compulsion (anagkes) when he killed, not merely on whether there is blood on his hands.26 The Furies had proposed that the proceedings should be governed by the swearing of oaths, as was common in purification trials. Those who swore were not witnesses to the crime but only those who believed one party or the other. Yet Athena insists “that an unjust cause should not gain victory by means of oaths.”27 Instead, Athena claims to “have chosen the best among my citizens to decide this issue well and truly” by considering “testimonies and proofs.”28 And during the trial Apollo testifies that he, not Orestes, “bears the responsibility (aitian) for the killing of this man’s mother.”29 The term Apollo uses, aitian, is perhaps better translated as causally responsible rather than morally or legally responsible, but the idea is that Apollo claims to have compelled Orestes to kill his mother and then to have “purified him from the taint of homicide.”30 The court discussed in Eumenides is the Areopagus, which had already become the most important and trusted court in Athens at the time that Aeschylus wrote. One of the crucial moments of the trial comes when Apollo says that the court is a great institution that acts justly, especially insofar as it recognizes “how strong is the plea of justification.”31 Because of the justification, Orestes can be seen to be innocent even though he is clearly at least complicit, as aider and abettor of Apollo, if not the perpetrator in the killing of Orestes’ mother.32 The Areopagus had already established itself as primarily focusing on the 23 24 25 26 29 32

Aeschylus, Eumenides, in Aeschylus’ Oresteia, ed. and trans. Alan H. Sommerstein, Loeb Classical Library 146 (Cambridge, MA: Harvard University Press, 2008), p. 377. Ibid., p. 381. Ibid., p. 395. See W. James Booth, “From this Far Place: On Justice and Absence,” American Political Science Review, 105 (2011), 750–64. 27 Ibid., p. 411. 28 Ibid., p. 417. Aeschylus, Eumenides, p. 409. 30 Ibid. 31 Ibid., p. 433. Ibid., p. 427. For a recent treatment of the idea of aiding and abetting in relation to war, see Bazargan, “Permissibility of Aiding and Abetting Unjust Wars.”

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testimony of witnesses and not, as was true of other Athenian court proceedings, on the mere swearing of oaths. There were more popular courts in Athens than the Areopagus, but the Areopagus was seemingly considered the pinnacle of justice in Athens. One of the reasons for this appears to be the strict rule of relevance that was applied in the Areopagus for the homicide cases it concerned itself with, as opposed to the much less strict format of the popular courts. The Areopagus came to symbolize the model of justice as being narrowly focused on the application of law to facts with considerations of character and reputation of diminished importance.33 It also seems that the Greek conception of justice was moving away not only from blood-feud and vengeance-seeking but also away from a simple focus on what has occurred due to a person’s own acts. The mental state of the defendant at the time he or she acted comes into the forefront of considerations of justice at the Areopagus. But there is still the residual idea that what one has brought about by one’s own hands is important and a matter of public concern and even sanction. It is also worth noting that interpretation of the Eumenides has spawned a debate about whether Orestes’ acquittal brings about not only the removal of his guilt but also the removal of his pollution. Is there a sense that the ancient criminal trial acts as a means of establishing Orestes’ purification as well as his legal innocence?34 It seems to me that the two judgments, that Orestes was legally (and morally) innocent because he killed out of compulsion, on the one hand, and that he was stained or tainted by the fact that the killing of his mother was by his own hands, on the other hand, are different and should be kept separate as apparently the Greeks were beginning to do at this time. And it will turn out that when rights become more central to justice than in ancient Greek times, it makes even more sense to talk of innocence and complicity as in a complex relation, a topic to which we return in the next section. The lesson to draw from the discussion of Orestes, as well as Oedipus, is that different liabilities follow from guilt than from moral taint or pollution. If one is guilty one is liable to be punished; but if one is tainted or polluted one is liable merely to various forms of social disapproval. The Furies hound Orestes for being “a killer” but in the end what offends Athena as well as Apollo is when the Furies presume to hold Orestes liable to be avenged by death merely for being polluted by his unintentional acts. There is a sense in which Orestes has objectively done a kind of wrong by being a killer, but this wrongness does 33 34

See Adriaan Lanni, Law and Justice in the Courts of Classical Athens (Cambridge University Press, 2006), chap. 4. See esp. Keith Sidwell, “Purification and Pollution in Aeschylus’ Eumenides,” Classical Quarterly, New Series, 46/1 (1996), 44–57.

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not make him liable to be severely punished and certainly not liable to be killed, despite what the Furies are furious about. It is true that Orestes killed his mother Clytemnestra and Oedipus killed his father Laius. But in both cases, there are significant mitigating considerations at play. Orestes was avenging the killing of his father Agamemnon by his mother Clytemnestra, and also acting on the directions of Apollo, and hence, he says, was not guilty of being a murderer. Oedipus was non-culpably ignorant of who the person was that he killed on the highway, so while it is true that he did kill the person who was his father and perhaps even murdered that person, he says he did not engage in the crime of parricide since he did not act intentionally to kill his father. Parricide as parent-murder is an all-things-considered matter, not one that turns on a simple biological connection between the killer and the victim, as Aeschylus is at pains to remind us. There is a difference between the case of Oedipus and that of Orestes that we should note. Oedipus could not have figured out that the person he slew was his father or the woman he slept with was his mother. This was the state of his fate – nothing he could have changed. Orestes, on the other hand, did know that he was killing his mother. It was just that he could not help but do so – he was compelled to do so both by the rage he felt for the fact that his mother had killed his father and also because he was commanded to act by the god Apollo. Oedipus lacked knowledge that he could not have gained; Orestes lacked the will to do other than he did. But in both cases liability to sanction is blocked because of factors that were beyond the control of the killer. The objective status of Oedipus and Orestes as being complicit in bringing about a wrong is complicated. On one hand there is a backward-looking sense of liability here in that it is true that Oedipus and Orestes have done acts that are objectively wrong. On the other hand there is a forward-looking sense of liability in that Oedipus and Orestes remain a threat to their fellow countrymen since their pollution risks polluting these countrymen. In this latter sense, their status as polluted is said to warrant their being killed. But it turns out that killing Oedipus or Orestes is not the only way their threat can be neutralized. And so it is not necessary that they be killed to overcome the threat they pose. Their status as polluted, and hence as objectively threatening, can be overcome without killing them. In any event, if it is possible to eliminate the threat they pose to their countrymen by not killing them, this other method must be employed first rather than killing them. IV

Liability and complicity

Objective wrongdoing is a very curious moral category, at least in most cases. I can make sense out of some of what is called objective wrongdoing today if we are talking about human rights. From a kind of objective standpoint, everyone

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is a bearer of human rights whether recognized subjectively or not, and when a person is deprived of the exercise of his or her human rights there is a kind of objective wrong that has been done to this person. That is just what it means to have rights by virtue of a characteristic like being human – it isn’t about subjective considerations. Yet, when an objective wrong is attributed to a person’s account and liability is said to follow I become skeptical. In the recent debates in Just War theory, some have proposed a shift in the understanding of the term liability. Instead of using the term as it is used in legal theory primarily to be what punishment or other sanction one deserves, liability is used to stand not for what one has merited but what one has brought upon oneself – as in making oneself liable for defensive harm by directly and wrongly threatening another.35 To incur liability because of objective wrongdoing or objective risking of someone else’s life seems to mean that the wrongdoing can be independent of what the person intends. The response is that given what soldiers do, they should recognize that this opens the possibility that they will be objectively wrongful killers. Yet, it is my view that liability for sanction, even if it is moral rather than legal sanction, should not be based merely on a single characteristic like being a killer but rather on a constellation of factors, some of which make the act wrongful and others could mitigate or even override the wrong-making characteristics prior to reaching the conclusion that punishment or severe sanctions are warranted. Liability to be attacked or killed is said to turn on one’s threat status. Yet it is rare that it is necessary for self-defense that one must counter such risks with attacks on a given person, especially lethal attacks, as I tried to show in the previous chapter. We can think about this issue in terms of soldiers who fight on one side of a war. It may be objectively true that they either fight on the unjust side or on the just side of a war. But if the soldiers are non-culpably ignorant of the justness of the side on which they fight, it is not clear why those soldiers who fight on the unjust side are liable to severe sanction despite having things they can say that mitigate their wrongdoing of participating in an unjust war. It is even less clear that those soldiers who are on the unjust side, and who are complicit, or even perpetrators, are liable to be attacked or killed either. Of course being non-culpably ignorant is not the same as having no way one could have gained the relevant knowledge. So, unlike Oedipus, in some cases a soldier could have gained crucial knowledge about the justness of the war he or she participates in, but there are nonetheless often reasons not to blame the soldier for failing to attain that knowledge. And as far as their being objective threats is concerned, for necessity to be satisfied (as I argued in the previous chapter) there must be 35

See McMahan, Killing in War, p. 8 and elsewhere. For a somewhat different but similar view see Quong, “Killing in Self-Defense.”

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no other way that their threatening can be countered to warrant the claim that they are liable to be attacked or killed. What is conceptually important is to keep separate the two senses in which a person who fights on the unjust side of a war may be liable. The status of being an “unjust combatant”36 seems to trade on an ambiguity in how liability is understood: the backward and forward-looking senses. Having the status of an “unjust combatant” does not necessarily create the kind of risk that can only be countered by attacks. It may seem that it does if one mixes the judgment that by one’s own hands one has done something bad or wrong with the judgment that one poses a risk to others. The term “unjust combatant” calls forth both of these assessments. But if we keep the senses separate we can see that most soldiers on the unjust side are not liable to be attacked or killed merely because of their status as “unjust combatants.” Insofar as they are direct perpetrators or complicit in bringing about something bad or wrong, they are liable, in a backward-looking sense, to severe sanction only if there are not defenses or excuses available to them. Insofar as they are direct perpetrators or complicit in a threat to the lives of those fighting on the just side of a war, they are liable, in a forward-looking sense, to be attacked or killed only if this is necessary to counter their threat. Each of these is rare, and their combination is even rarer. Most soldiers who are in combat do not kill other soldiers. In fact there is some evidence that normally most of these soldiers on both sides never fire their weapons. So, it is not obvious in what sense soldiers are threats to other soldiers that would justify their liability to be killed. The most plausible argument is that soldiers are complicit in the threat to the lives of enemy soldiers and their complicity makes them potentially liable to be killed if they are also acting unjustly. But complicity does not very often trigger liability to be killed, instead of other liabilities.37 I have elsewhere argued that complicity in international criminal law can result in legal liability (for punishment or harm) when two conditions are met. First, a person’s actions or omissions must causally contribute to a harm or wrong. And second, the person must know that his or her actions or omissions are likely to contribute to a harm or wrong and must intend that his or her actions or omissions risk making this contribution.38 Even in the legal case of complicity there will be various lesser or graver punishments that follow from the liability of the person who is complicit. Just as there is a range of 36

37 38

This has become the preferred term in the contemporary Just War literature. I have grave misgivings about this term since it is ambiguous between a person who is unjust and a person who merely participates in what is wrong. See Bazargan, “Complicitous Liability in War,” who reaches a somewhat different result from a similar analysis. See May, Genocide, chap. 9.

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punishments for most crimes, there is a range of punishments for those who are legally guilty based on their complicity. Complicity comes in degrees – from the direct aider to the one who merely keeps quiet or does nothing to help – and hence there are often quite different things that a person is liable for that follow from a judgment that a person is complicit in a harm or wrong, or in being a threat.39 Indeed, it may be that one is complicit and yet other factors outweigh the liability that is produced by the complicity. Complicity carries with it prima facie liability to sanction or attack. But two things need to be said about this liability. First, the liability can result in a wide range of possible responses based on how serious the complicity is. And second, the prima facie liability associated with complicity can be outweighed by other considerations in some cases. As I have said before, we should remember that innocence is understood differently in the Just War tradition on the one hand, and in contemporary criminal and moral accounts on the other hand. There is a sense that a person can be objectively complicit, and yet still be innocent in that this person is not liable for severe punishment and certainly not liable to be killed. This is because it may be true that a person is complicit in that he or she has contributed, for instance by means of aiding or abetting a perpetrator of a wrongdoing, and yet still be innocent if we take an all-things-considered view of the relevant factors concerning the person’s complicity. Some forms of complicity do not expose the person who is complicit to liability for severe punishment. And it is also true that being complicit can make one liable to be attacked or killed, but as I said, only if this is the only way to counter the complicity. In both forms of liability there is a proportionality requirement that calls for the response to fit the nature of the wrong or threat. Being in the wrong or being a threat does not so change one’s moral situation that nothing else matters. The sanction or attack must be proportionate to the wrong or threat (I discussed proportionality in Chapter 4). As far as I can see, the only reason that some people think otherwise is because they have confused the two senses of liability I have been urging that we keep separate in this section. One could admit that being complicit always changes one’s moral status or situation, and yet deny that anything follows from this that is morally significant in terms of one’s moral liabilities – moral status involves more than just moral liability. What I have been suggesting is that less severe or serious liability may follow from secondary, that is unintentional, complicity. One may be liable for moral criticism or for feeling a sense of shame. In addition, as in the cases of Oedipus and Orestes, one may be liable for being tainted or polluted, at least until one has achieved a kind of purification. 39

See Chiara Lepora and Joseph Millum, “The Tortured Patient: A Medical Dilemma,” Hastings Center Report, 41/3 (2011), 38–47.

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The reason that severe liability does not follow from secondary complicity is that the complicity may be required in order to do good.40 In some cases one needs to be complicit in some sense in order to be able to bring about much more important goods. I take up such a case, namely that of a humanitarian aid worker who is complicit in an unjust war, in the next section of this chapter. And if one does bring about these goods as one is complicit in a wrong, there may be significant mitigating factors that may affect the extent of one’s liability to sanction. And in addition, such considerations could affect one’s liability to be attacked or killed as well. The soldier who is acting on what he or she believes to be legitimate and justifiable orders is a case to consider of this sort. The discipline needed for any army to function relies on soldiers carrying out orders given to them unless those orders are manifestly illegal or immoral. And in some cases the good that war can do cannot be accomplished unless soldiers risk being complicit in that they participate in the wrong of an all-things-considered unjust war. It may be here that the soldier who does not take this risk also risks being complicit, because of one’s omission, in that he or she fails to do what he or she has a role responsibility to do by putting on the uniform of a State and agreeing to protect the citizenry thereof, as well as most importantly his or her fellow soldiers. The risks inherent in possibly participating in, and being complicit in, an unjust war are sometimes offset by the risks involved in not defending one’s fellow citizens as one has agreed to do. In the case of the assumption of roles within a complicit organization, it makes even more sense than it will when we are talking of solitary individual aid workers, to say that the individual is not liable to be killed or attacked. V

Humanitarian aid workers

One especially difficult case concerns the humanitarian aid worker. Performing humanitarian acts, such as stitching up soldiers on both sides of a war, or stitching up those responsible for a massacre, including the genocidaires, who otherwise would bleed to death, requires that humanitarian aid workers risk stitching up “unjust combatants,” who will prolong an unjust war or an atrocity. Some have contended that these aid workers are liable to be killed because of their complicity in an unjust war.41 Here is a case of objective wrongdoing that, just as would be true if they were munitions workers or bakers of the soldiers’ mess, supposedly triggers liability to severe sanctions or to be attacked. Even if the aid worker acts in complete ignorance of the unjustness of the cause of the person who is being aided, insofar as the aid worker puts more unjust soldiers on the battlefield the aid worker is complicit or at best an 40 41

See Lepora and Goodin, On Complicity and Compromise. See Frowe, “Killing the Red Cross.”

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innocent threat to the lives of just combatants. And innocent threats are liable to be killed if the only way they can be stopped from threatening the self-defense of others is to kill them. Or at least this is one version of the argument of those who think that humanitarian aid workers can be justly killed. Yet it seems odd indeed to criticize the humanitarian aid workers since they are if anything ministering to the war’s victims, whose suffering is brought on by a war that was not of the aid workers’ choosing. Notice that if they are truly “innocent threats” then it would be odd to say they deserve to be blamed – although blame and liability are different. It is true that the aid workers choose to go into combat areas when they could have stayed away. And it is also true that they know they will be asked to minister to the wounded regardless of whether these wounded combatants will go back into battle on the just or unjust side of the war. But why the humanitarian aid workers choose to be there is in order to minimize the great suffering that wars always cause – and surely this is often a case of moral heroism on their part. Yet, the neutrality of the humanitarian aid worker is just what the source of the problem is. For it is not clear that these aid workers are fully innocent. If their neutrality is premised on the idea that they aid soldiers on both sides of a war, then they know that some of those whom they aid are unjust combatants, and in this sense the aid workers are not completely innocent. Yet, there are offsetting factors that must also be taken into account. The neutrality of being willing to stitch up the wounded on both sides of a war is often what is necessary to get access to the wounded so that the humanitarian aid, for both sides, can be administered. The access to the wounded that is crucial for humanitarian aid workers to do their jobs is typically only secured by the pledge of neutrality that is implicit, and often explicit, in the mission of the humanitarian aid workers like those who work for the International Committee of the Red Cross. Indeed, there is a sense that the humanitarian aid workers could also be complicit if they did not stitch up those who turn out to be “unjust combatants.” For if one indicates that one is willing to go to another person’s aid, and then does not indeed do so, the responsibility for the untoward consequences suffered by the person who could have been aided, falls on the person who has indicated that he or she will aid but then draws back. This is one of the most important exceptions to the general rule in Anglo-American jurisprudence that there is no duty to rescue. When someone is relying on us to act, based on something explicit we did to encourage such reliance, then we are no longer free to disregard the suffering of others without incurring some responsibility for their continued suffering.42 42

I thank the members of the Complicity seminar of the Ethics group of the National Institutes of Health for pressing me on this issue.

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It might be said that these aid workers are additionally complicit in that they extend the life of a war. And this is also sometimes true. But again this is secondary, that is non-intentional, complicity, not the kind that triggers liability to be severely sanctioned or killed. The alternative to patching up soldiers is that they will die often horrible deaths without care and it is to avert this calamity that the aid workers struggle. Their complicity is not of the sort that makes them liable to be severely sanctioned, although it is nonetheless true that they are, in some sense, complicit. It is not enough merely to show that they are complicit for establishing the kind of guilt that would warrant severe sanctions, or for establishing the kind of threat that warrants liability to defensive attack or being killed. Another source of complicity for humanitarian aid workers is that their neutrality in providing assistance to a certain group could be mistakenly viewed by some people as support of the group since the aid workers offer no criticism of the group they are helping so as to retain their neutrality. Indeed, such assistance could be used as propaganda, making humanitarian aid workers unwittingly seen as supporters of certain groups. At its worst, the actions of humanitarian workers could actually aid the unjust causes of the groups that they provide assistance to. In this sense complicity is in fact correctly attributed to them. Yet because of the additional fact that their neutrality allows them to do great good to those in need of assistance, their complicity does not necessarily trigger liability to be severely sanctioned or attacked. So, it might be asked: What is the point of calling humanitarian aid workers complicit at all if there is no liability to severe sanction or attack that follows from this ascription of complicity? The point is that humanitarian aid workers should not think of themselves as fully innocent, in the second sense of that term I discussed earlier. Like Oedipus, they are not fully innocent since it is by their own hands that they have contributed to the waging of a war that lacks a just cause. Their hands are not clean in this matter. Some humanitarian aid workers are like Oedipus in that they act deliberately, but are often unaware that their actions contribute to a wrong or harm. In this sense the aid workers are polluted by what they do, and are perhaps in need of purification, but not liable to severe sanction. In my view to be morally or legally responsible in a way that triggers liability to significant sanction, there must be an intent to do that which is wrong, and here that is generally lacking. And if it is their threat that is the issue, as I will argue in the next section, the case cannot be made out unless it is necessary to attack or kill them in order to counter the threat. Not the least of the problems with complicity of humanitarian aid workers is that it is very unclear how to assess the possible causal chain that would lead from their humanitarian acts in aiding a particular soldier to that soldier coming back into battle and killing just combatants or

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civilians.43 And even if it turns out that there was such a clear causal chain, this does not make the humanitarian aid worker a threat in the right way to trigger liability to be attacked or killed. The mere possibility that this might result from the acts of aid workers and medics is not sufficient to trigger such liability. As in the cases of Oedipus and Orestes, we must also look at what are the alternatives to attacking or killing them to counter the threat. Like the soldiers who are responsible for collateral damage, aid workers may be responsible for enabling soldiers to wage war without just cause. Yet, the responsibility here is surely not what would make them liable to be severely sanctioned or to be killed, just as is true of those who are responsible for collateral deaths. And like those who cause collateral deaths, humanitarian aid workers may not intend to do that which is associated with such bad results. The humanitarian aid workers may also say that, only because of their association with wrongdoing, they are able to do good for certain individuals who would otherwise suffer horrible deaths on the battlefield. As far as liability to be attacked or killed is concerned, it is rare indeed that a given humanitarian aid worker must be attacked or killed to counter that person’s threat.44 There is also a sense in which the humanitarian aid workers have lost their innocence merely by being associated with wrongs or harms perpetrated by others. This type of lost innocence should not be dismissed, just as is true of the ancient Greek worries about being touched by another person’s pollution. The origins of such feelings of pollution are seemingly deep in the human psyche, and cannot be easily dismissed since they may be markers or red flags that we ignore at our moral peril. Yet, even more than the loss of innocence from what results from one’s own hands, being polluted by what others do by their own hands does not trigger liabilities to be severely sanctioned or killed. VI

Complicity in organizations

Rather than saying that individual humanitarian aid workers are complicit because of their individual causal contributions to an unjust war, it might make more sense to say that these aid workers are complicit because of their contributions to an organization that is putatively contributing to an unjust war. The organization, the International Committee of the Red Cross for instance, might be complicit in that this organization contributes to an unjust war by supplying medical assistance to the unjust side of the war and by its position of neutrality. If we focus, at least initially, on the organization (as a collectivity) rather than the individual aid worker, the initial attribution of complicity seems less 43 44

I tank Saba Bazargan for discussion of this point. But since I must recognize the possibility of the necessity condition being satisfied here, I remain a supporter of a contingent pacifism, not a traditional version of absolute pacifism.

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problematic in straightforwardly causal terms. For when we focus on just one individual aid worker, the causal link to the unjust war is normally very hard to make out. Yet when we focus on the collective rather than the individual level, I will argue that there are still serious impediments to thinking that the organization’s complicity means that its members are liable to sanction or attack. One of the central problems in collective complicity is assigning individual responsibility to individuals who are members of collectives that are complicit. The reason for this is that individuals may participate in many different ways to what a collective does and their share of the larger complicity cannot merely be read off from their role in the organization. I have written about such problems in the context of those who participate in collectivities, such as corporations,45 or armies that commit atrocities.46 One of the problems is that those who are members of organizations do not necessarily share the intentions or even the goals of the organization. In international criminal law terms it is hard to see members of organizations who are not in leadership roles as fully liable to sanction when the organization is complicit. The members generally lack mens rea, even if they manifest actus reus by their actions. In many organizations, the leadership sets the goals and in a sense embodies the intentions of the organization. But as Christopher Kutz has argued, often “participants intend only their own contributions; they do not conceive the group effort as within the ambit of their control.”47 While non-leaders especially may intend to participate in the organization’s actions, their “participatory intention” (to borrow a phrase from Kutz) is not to do what the organization strives to accomplish. The non-leaders typically intend only that they participate in the organization. I have argued that if these non-leaders know the aims of the organization to which someone will contribute by participating in the organization, they might share in the responsibility for what the organization does by a kind of transferred intent. If the non-leaders who intend to participate in the organization, know that such participation will contribute to specific aims, then they in a sense intend to do what the organization does. But what is unclear is if this might make the non-leaders complicit in the right way to make them liable to punishment or attack.48 The difficulty with the humanitarian aid cases I have been examining is that the organization they are members of has multiple aims, some primary and some secondary. A person who works for the ICRC may know about and share the humanitarian aims of the organization but not know about or intend the possible effects (whether aimed at or not) of supporting an unjust war. Or if 45 46 47

See May, Morality of Groups. See Larry May, Crimes Against Humanity (New York: Cambridge University Press, 2005). 48 See May, Genocide. Kutz, Complicity, p. 67.

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the humanitarian aid worker knows that these are likely effects of the organization’s work, this is not typically the primary intent and at best is a constructed secondary intent of the aid worker. One of the implications of the analysis so far is that even if the individual aid worker does not intend to contribute to an unjust war, and her actions may not make much of a difference for that effort, if the organization has that as its aim, by participating in the organization the individual in a sense intends what the organization aims at. So, it is perhaps not so important whether we can trace the causation from the individual’s actions to the harm of the unjust war. Yet, it also is true that the individual’s responsibility is only for the extent of that individual’s role in the organization’s effort. And this may be quite limited unless the individual is one of the leaders of the organization. Thus it seems that the case for the liability of humanitarian aid workers for serious sanctions, based on their complicity in an organization that supports an unjust war, is rather weak. But as I noted earlier there is another sense of liability as this term is currently understood in recent Just War literature. Someone may be completely innocent in the first three senses I identified at the beginning of this chapter and yet still liable to defensive harm if the person is a significant threat. Yet, it will matter how much one is a threat. If a person’s participation is not necessary for the organization to constitute a threat of harm to someone, the corresponding liability may not be very great. Here the worry is not about punishment or sanction but about defensive harm. And in the case where it is the organization that is the threat, defensive harm to an individual is only justified if harming a given individual in the organization is necessary for the threat to be thwarted. I here employ an idea of necessity, developed in the previous chapter, that to a certain extent departs from recent work on the Just War although is clear in work on human rights law. Lethal defensive force is only justified if it is necessary in the sense that there is “no other way” the threat can be thwarted.49 This is based on a commonsense argument that since lethal force is so significant a harm it can only be justified when it must be used to avert a similar harm. And this position then counts as even more of a problem when it is an organization that is the innocent threat rather than a particular individual. Think here about the case where the neutrality of the aid worker’s organization is what is causing a threat to those who fight on the just side of a war. In such a case, normally a given aid worker is not a risk to a soldier on the just side of a war except in his or her role within the larger organization. But because the individual can be readily replaced, and in any event the threat from any particular aid worker is 49

See Larry May, “Humanity, Necessity and the Rights of Soldiers,” unpublished essay in possession of author.

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not imminent, he or she is not liable to be lethally attacked because such attack is not necessary for self-defense. It is interesting here to speculate about what it would mean to say that an organization is an innocent threat to a given soldier. Are we to think of such cases as still within the mode of reductive individualism, or should we think of the organization as having some non-reductive features of its own? And because this question is so hard to answer, the organization’s liability is often understood to be reduced to the liability of the members. But not every member will have the same liabilities. The members will be liable based on the threat that acting within their role has generated. Yet, rarely is one aid worker, by acting within his or her role, a direct threat to anyone. VII

Those who are complicit but also innocent in war

In this section, building on the analysis of humanitarian aid workers, I will briefly examine the status of certain classes of civilians and soldiers who can be said to be complicit in a war or armed conflict. In the previous section, I have been suggesting that we think of complicity in two senses, primary and secondary. The primary sense of complicity is that a person is morally or legally responsible for having done acts intending to aid others who are perpetrators of wrongdoing. The secondary sense of complicity is that a person does acts that causally contribute to the perpetration of wrongdoing, but providing such contribution is not the primary aim for which the aid is being provided. In the case of humanitarian aid workers, normally the primary reason that the actor acts is to do good, namely, to minimize the suffering of those on the battlefield. Not every person who does wrong or is complicit in a wrong or a threat is liable to be severely sanctioned or to be attacked, although of course they can be liable to be shamed or polluted. Indeed, liability to be severely sanctioned should be reserved only for those who intentionally bring about a serious wrong, given how seriously injurious severe sanctions or attacks are. This brings in my version of the Just War tradition’s proportionality principle. Liability to be attacked or killed is the most serious response that a person can face as a result of one’s wrongful actions. And so liability to be attacked or killed does not attach to unintentional acts or to acts that cause or risk only minor wrong or harm. And those who are merely complicit do not normally satisfy the proportionality condition of serious wrongdoing needed to warrant liability to be attacked or killed. For example, if the wrong-making aspect of one’s acts in some way poses a threat to the self-defense of another person, and the only way to prevent that person’s death is to kill the threatening person, then it might be reasonably said that the aggressive wrongdoer is liable to be killed. But as I have argued, it is also important to realize that the combination of proportionality and necessity

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requires that if being non-lethally attacked will thwart the assault on one’s selfdefense, then one should not kill the one threatening one’s self-defense instead of merely attacking him in a way that disables him for instance.50 Wrongdoing can make us liable to punishment, or to being tainted for that matter, but it is rare that complicity in wrongdoing can make us liable to be severely punished, attacked, or killed. Those who vote for a candidate who has promised to take the nation to war surely are at most liable to be shamed or polluted. Seeing them as liable to be attacked would be unnecessary and disproportionate given that their voting is not currently jeopardizing anyone’s self-defense. Finally, let us consider those soldiers who seem to be both innocent and also complicit. The traditional doctrine of the Just War as well as of pacifism is that all soldiers are innocent in one of the first two senses I identified at the beginning of this chapter. For recent Just War theorists, soldiers who fight without just cause have been seen as not innocent in the sense that they may be liable to be killed. Yet, in my view, most soldiers on both sides are innocent in a somewhat similar way to that of the humanitarian aid workers. Some soldiers who fight in war or armed conflict are today recognized as innocent in the sense that they are not liable to be killed or injured as a defensive matter, namely those soldiers who fight with a just cause. I have argued elsewhere that in assessing proportionality it seems that such innocent lives of soldiers need to be protected.51 This issue is especially important in considering whether wars of humanitarian intervention can be justified given that the loss of innocent soldiers’ lives may not often be overridden by the gains to those who are suffering from the humanitarian crisis which might be alleviated by the initiation of humanitarian war.52 So, some soldiers are innocent even though they are complicit in risking the death of others on the battlefield. Some other soldiers and combatants are like humanitarian aid workers in that they participate in war, whether it is fought with a just cause or not, from good intentions and for purely patriotic or even humanitarian motives. It is a mistake not to recognize their contribution to wrongdoing by marking it as complicity, even as it is wrongheaded to say that these soldiers are liable to severe sanction or to attack. While these soldiers are complicit they are also innocent in a significant sense of that term; their complicity does not make them liable to severe sanctions or attack. In this chapter I have argued that there is a variety of types of innocence, and also a variety of types of complicity. In addition, I argued that there is a variety of types of liability that could be said to follow from a person’s complicity. The common idea that innocence and complicity are opposites or at least not 50 51

See Newton and May, Proportionality in International Law, esp. chap. 6. 52 See May, After War Ends, chap. 7. Ibid., esp. chap. 12.

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compatible with one another fails to note the complexity of both the concepts of innocence and complicity, where in some cases a person can be both complicit in that one contributes to a wrong or threat and yet innocent in the sense that one is not liable to serious sanction or to attack for so acting. Considerations of mitigation as well as necessity and proportionality have been at the forefront of my argument here In my view, it is a mistake to think that mere objective association with wrongdoing should be seen as triggering liability to severe sanction or attack. And this view is consistent with a very long line of work on these issues extending back to the ancient Greek accounts of Oedipus and Orestes. The older conception that saw those who killed without malicious intent as innocent can be defended, and defended in a way that could support contingent pacifism. Since pacifists first began challenging the rulers of their nations concerning the conduct of war, innocence has played a large role in their arguments. A concern for the innocent civilians who are likely to be harmed or killed in large numbers has been at the heart of this debate. But I have been arguing throughout the last three chapters that there should also be a concern for innocent soldiers, on both sides of a war. And such considerations make the moral case for contingent pacifism to be fairly strong.

Part III

International Law and the Practice of Peace

7

The United Nations Charter and outlawing war

In this chapter I will argue that several current positions in international law, especially related to how to interpret the United Nations Charter, seem to support a position close to contingent pacifism. I will be interested in following out the clear mission of the United Nations to put an end to the ravages of war. There is, of course, the exception for wars of self-defense, but as we will see, even in this case war as we had known it, where States unilaterally decided when and where to wage war, was meant to be seriously curtailed. The United Nations was to put an end to war, where States initiated war against each other, even war fought in self-defense. This is the clear promise of the UN Charter, even if the reality has been quite different. But it is the promise that I will focus on since, at least at the founding of the UN, there was something like a contingent pacifist consensus. In the first section of this chapter, I will explain the framework for thinking about the legality of initiating war in international law that was to be ushered in by the UN Charter. In the second section, I will set out an argument for the position that the various articles of the UN Charter seem to hold out the promise that the UN would support something like contingent pacifism. In the third section, I explore how various International Court of Justice opinions have interpreted the Charter as greatly restricting the use of force by one state against another. In the fourth section I discuss some of the scholarly debate about the mission of the UN in regards to State-initiated armed conflict. In the fifth section, I discuss various additional considerations from international law that seem to support something like a contingent pacifist position. In the sixth section, I will respond to some of the objections to my views about the possibility of the underlying contingent pacifism of the United Nations. While my interpretation of the promise expressed by the United Nations Charter is controversial, there certainly is support for seeing the initial idea of the United Nations as outlawing nearly all war and hence as something near enough to contingent pacifism to be worth pursuing further.

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I

An emerging framework in international law

In this first section I will set out the framework of international law that is grounded in the UN Charter’s promise of outlawing war. Then I will develop the supporting interpretive arguments of the current section throughout the rest of the chapter. The thesis of the chapter is that one of the main promises of the UN is the outlawing of nearly all war in a similar way to the way that is understood by those who support contingent pacifism. The Oxford Encylopaedic Dictionary of International Law states as a matter of fact that recourse to war is outlawed in international law. In the attempts by the international community to prevent war, two instruments stand out. The General Treaty for the Renunciation of War (the Kellogg–Briand Pact) of August 27, 1928 (94 LNTS 57) condemned “recourse to war for the solution of international controversies and renounc[ed] it as an instrument of national policy” (art. I); and the Parties undertook to settle all disputes or conflicts by peaceful means (art. II). The UN Charter, in art. 2(4), requires all members to refrain from the threat or use of force; and art. 2(3) requires all members to settle disputes by peaceful means “in such a manner that international peace and security, and justice, are not endangered.” The fact that war is, under contemporary international law, outlawed and therefore illegal does not mean that the conduct of any war is outside the accepted rules on warfare.1

This is a statement about the legality of initiating war, not the legality of how war is to be fought. But what is perhaps jarring is that initiating war is declared to be illegal, and this is presented as an uncontroversial fact of international law. Since the end of World War II, many documents and scholars have confirmed the idea that war or armed conflict as it had been known was supposed to be illegal in international law. I will spend time in setting out some of the most important of these legal documents and arguments. But I should note that international law scholars today are by no means in agreement that war is outlawed, primarily because of a controversy about how to understand the relationship between Article 2(4), discussed by the Oxford Dictionary authors, and Article 51 of the Charter, which seems to provide an exception, for wars of self-defense, to the general prohibition of States to initiate war. Nonetheless, I will argue that the UN Charter, as one of the main sources of international law concerning the legality of initiating war, certainly held out the promise of being something like a contingent pacifist document. Matters concerning the conduct of war are quite different from matters about initiating war. The main body of law here is international humanitarian law, which does not regard all strategies and tactics of war to be outlawed. Indeed, 1

John P. Parry and J. Craig Barker, Oxford Encylopaedic Dictionary of International Law, 3rd edn. (Oxford University Press, 2009).

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international humanitarian law seems to follow the Just War tradition in seeing only those tactics that target civilians or cause unnecessary or superfluous suffering to soldiers to be illegal. Many if not most strategies and tactics of war are seemingly legal. In terms of international humanitarian law, there is no support for the complete outlawry of war. Yet, it will be my argument, advanced in Chapter 8, that the law of war is sometimes thought to be changing. The main reason for such a change is that various court opinions, advisory statements, and scholarly pronouncements have introduced the idea that human rights law may be applicable to war. And here what is important is that human rights law does not seem to allow the intentional killing of one person by another – a practice that has been characteristic of war for millennia. Human rights law’s very strong support for the right to life is not easily reconciled with strategies and tactics of war. So, there is an argument to be made in support of the claim that many strategies and tactics, and other matters subject to the laws of war, should be seen as illegal. These chapters are an attempt to sketch the broad contours of the argument for this claim. Given the contemporary debates in international law, my claim may seem quite radical. Many of my arguments draw on very recent, and often controversial, sources such as the International Committee of the Red Cross’s Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. But I will also draw on the text of the UN Charter, arguably the most important source of international law on the initiation of the use of force by States. And I will also draw on the St. Petersburg Declaration, one of the first statements of the law of war. Furthermore I will draw on several important decisions of the International Court of Justice. So, while my primary argument is normative, I also advance arguments about an alternative way to understand significant sources of international law, even while I recognize that these are not accepted interpretations. II

The United Nations Charter

The Charter of the United Nations had as one of its most important goals to eliminate war. It is often commented that realizing this goal is no closer now than it was in 1945 when the Charter was drafted.2 But it is also true that the Charter sets very severe restrictions on initiating war, which if realized could look like something close to contingent pacifism, specifically in changing the burden of proof concerning justifying recourse to war. The Preamble to the 1945 Charter of the United Nations begins in the following broad and evocative manner: 2

See for example Mark Janis and John E. Noyes, International Law: Cases and Commentary (St. Paul, MN: West Law, 1997), p. 419.

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We the Peoples of the United Nations [are] determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity of and worth of the human person, in the equal rights of men and women and of nations large and small . . .

Notice that the first thing mentioned is “to save succeeding generations from the scourge of war.” And notice also that war is associated with the term “scourge,” already giving the reader the idea that war is not a favored institution. Of course, the point to emphasize in general is that the United Nations is established to save people from the scourge of war, especially as war had undermined human rights, seemingly implying that war as it had been known should end with the founding of the United Nations. Article 1 of the United Nations Charter lists as the first purpose and principle of the United Nations: 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and to the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustments or settlement of international disputes or situations which might lead to a breach of peace . . .

The first purpose and principle of the United Nations is to maintain the peace and by implication to avert war. Of course it is also true that maintaining the peace could involve the suppression of acts of aggression, and that suppression effort could lead to the use of war to stop an aggressing State from attacking one of its neighbor States. But notice that the Charter says that stopping aggression is to be done “by peaceful means.” I will pursue this issue in detail in what follows. Article 2, section 4 of the United Nations Charter is a bold statement seemingly prohibiting States from initiating war. All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

This article only seemingly outlaws all initiation of war, because of the effect on Article 2(4) of Article 51, which reads in its first half as follows: Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.

There has been much debate about how Article 2(4) and Article 51 are supposed to fit together. Some suggest that the use of the word “inherent” is the key

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to Article 51 as establishing its priority over Article 2(4), and hence of the acceptance of wars fought in self-defense.3 Others have argued that “until” is the key to Article 51 and this seems to give only a very limited right of unilateral action on the part of even those States that have been attacked, namely a right limited to the time until the UN acts.4 I believe it is important also to examine the second part of Article 51 for help in interpreting its meaning: Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

This is by no means clear-cut, but it seems to say that even the inherent right of self-defense does not impede the right of the United Nations to act to maintain or re-establish the peace. It thus appears that the key to the whole of Article 51 is not to give States a blanket self-defense exception to Article 2(4)’s prohibition on waging war, but to reaffirm that if war is to take place it is only under the auspices of the United Nations, which would have dramatically changed the nature of war as it had been known. This is the promise of the Charter, or at least one interpretation of that document. It is important to my interpretation of the United Nations Charter as promising something close to contingent pacifism that we examine the beginning of Chapter VII of the Charter concerning threats to the peace and acts of aggression. Article 24(1) of the Charter asserts that the Security Council has “primary responsibility for the maintenance of international peace and security.” Any use of force that is legitimate under the UN Charter has to be recognized and authorized by the UN’s Security Council. Article 39 is one of the most important lynchpins in my interpretive argument since it takes out of the hands of States the decision about whether to go to war. This article asserts: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression, and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

The United Nations here arrogates to itself the determination of whether the acts of one State are a threat to the peace that would require action by the United Nations through its member nations, or the temporary acts of self-defense by 3 4

See John Yoo, “Using Force,” University of Chicago Law Review, 71/3 (Summer 2004), 729–97. See Eugene V. Rostow, “Until What? Enforcement Action or Collective Self-Defense,” American Journal of International Law, 85/3 (July 1991), 506–16.

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one nation. And here the United Nations again reaffirms that it is the institution that decides what measures should be taken and by whom, even in cases of self-defense. Article 40 lists the actions short of the use of armed force that the United Nations can employ, including “interruption of economic relations.” Article 41 specifies that the United Nations will use “action by air, sea, or land forces as may be necessary to maintain or restore international peace and security” if Article 40 measures have failed. The effect of these two articles, in combination with Article 39, is greatly to restrict what States can do in terms of initiating acts of war. It thus seems that one clear way to interpret Article 51 is merely as an emergency provision, where a State can act in self-defense only if the United Nations is not acting and only until the United Nations can react. On this interpretation, war as the world had known it, where States decided unilaterally when and whether to initiate war, was thus virtually outlawed. There is though an exception for joint action by States under the auspices of the Security Council. Indeed some have argued that there is a requirement that States band together to address systematic human rights abuses. The use of force in such cases could be labeled a “just war.” But I would argue that the kind of force envisioned in Articles 55 and 56 of the Charter, for instance, are not recognizably instances of “war” as this term has been employed over the centuries. Note that Articles 55 and 56 are grouped under Chapter IX, which has the title “International Economic and Social Co-operation,” not under a title concerning the use of force. The kind of co-operation that is required is not primarily that of military force. And so, even humanitarian intervention initiated by a single State seems not to be countenanced. And for this reason the Charter can be read, not uncontroversially, to outlaw all use of force not sanctioned by the Security Council, even as there is a section of the Charter that seems to allow for armed conflict in cases of self-defense. Indeed, Article 42 states: Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

This reference to forces is to a collective use of armed force by States authorized by the Security Council. The United Nations Charter can be interpreted as something like a contingent pacifist document insofar as war and armed conflict as the world had known them, where States made unilateral decisions to attack one another, are outlawed. And the reason that the Charter is not fully a contingent pacifist document is because of the ambiguous way that wars conducted for State

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self-defense are treated. As we will see, there is a reasonable dispute about whether, and to what extent, self-defensive war is allowed. If there is this exception, then the UN Charter would not necessarily oppose all contemporary wars. And hence for this and the rest of the reasons offered in this section, I regard the Charter as perhaps close to a contingent pacifist document, but not fully one. Again, this is an interpretation of the promise of the UN Charter, not about how it has come to be understood, although as we will see there is evidence to think that my interpretation has some support there as well. III

The International Court of Justice and the UN Charter

For further evidence of how the United Nations and its related institutions view recourse to war we can consult the International Court of Justice’s (ICJ) cases interpreting Articles 2(4) and 51 of the UN’s Charter. This is an especially rich source of how to understand the Charter since the ICJ is itself an organ of the United Nations. In what follows I will look at three of the most important cases from the ICJ: the Nicaragua case from 1986, the Nuclear Weapons case from 1996, and the Palestinian Wall case from 2004. In a preliminary decision about the mining of Nicaragua’s harbor by the United States from 1984, the ICJ favorably cited Nicaragua’s claim “that there is no generalized right of self-defense.”5 There is here undoubtedly contemplated a difference between a generalized and a particularized right of self-defense. And then in the 1986 main judgment concerning the merits of Nicaragua’s case against the United States, the ICJ made several important points that set the stage for my interpretation of the United Nations Charter as close to a contingent pacifist document. In the ICJ’s 1986 Nicaragua (merits) case, the Court held that the principles concerning the use of force articulated in Article 2(4) of the UN Charter have a “binding character.” Hence, States are required to abstain “from the threat or use of force against the territorial integrity or political independence of any State.”6 The Court goes on to discuss Article 51’s exception to the prohibition on the use of force due to considerations of self-defense. The clearest case of justified use of force in self-defense is “in the case of an armed attack which has already occurred.”7 For self-defense to justify the use of force by State A against State B, there has to have been an armed attack against State A by State B. In addition, the attack must also meet requirements of being of sufficient “scale and effects” to be more than a mere “frontier incident.”8 5 6 7

Case Concerning Military and Paramilitary Activities In and Against Nicaragua, Jurisdiction of the Court and Admissibility of the Application, para. 92. Case Concerning Military and Paramilitary Activities In and Against Nicaragua, Merits, para. 188. 8 Ibid., para. 195. Ibid., para. 194.

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The category of armed attack is severely limited by the Court in the Nicaragua merits case. And before self-defensive use of force can be justified the State must have “immediately” notified the United Nations that it has been subject to an armed attack.9 There is controversy about why the ICJ spends so much time in the Nicaragua case on this notification requirement. At least one plausible explanation is that even in cases of self-defense, a State must not act solely on its own. Requiring notification of the United Nations is not the same as requiring approval, but the requirement of notification signals that justified use of force for self-defense is not to be unilateral, or at least not beyond a temporary action taken until the UN can act. Of perhaps even more importance is that the ICJ for the first time clearly differentiated acts that are armed attacks and acts that fall short of being armed attacks. And the ICJ stipulated that when such latter acts have occurred the attacked State does not have an inherent right to use force against the attacking State. States have a right of non-intervention, which does not rise to the level of the right of self-defense, and for which there is no inherent right to use force against the State that violates the right of non-intervention. The Court here worries that if there is an inherent right to use force against another State such a rule would admit of “serious abuses.”10 Similarly, respect for sovereignty will also not justify the use of force that would otherwise constitute an abridgement of Article 2(4). Even in cases of self-defense, the ICJ is clear that the “inherent right” of selfdefense is not unlimited. Principles of humanitarian law, which require that acts be both necessary and proportionate to the attack, are clear restrictions on even what is called an “inherent right” (in French the term used is droit naturel – natural right). But when such an inherent right is not applicable, “the criteria of necessity and proportionality take on a different significance.”11 The Court is clear that if the strict requirements of an armed attack are not met then it will be much harder to satisfy necessity and proportionality requirements in justifying the use of retaliatory force. Here is the Court’s summary: On the legal level, the Court cannot regard response to an intervention by Nicaragua as such a justification. While an armed attack would give rise to an entitlement of collective self-defense, a use of force of a lesser degree of gravity cannot . . . produce any entitlement to collective countermeasures involving the use of force.12

The ICJ’s interpretation of the UN Charter makes it very difficult, although not impossible, to justify recourse to war, just as is true of the contingent pacifist position. And at least some of the arguments are similar to the arguments concerning necessity and proportionality I discussed in earlier chapters. 9

Ibid., para. 200.

10

Ibid., para. 202.

11

Ibid., para. 237.

12

Ibid., para. 249.

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In the ICJ’s Nuclear Weapons case from 1996, the Court at one point seemed to go back on its earlier idea that there is no generalized right of self-defense: the Court cannot lose sight of the fundamental right of every State to survival, and thus to its right to resort to self-defense, in accordance with Article 51 of the Charter, when its survival is at stake. Nor can it ignore the practice referred to as a “policy of deterrence,” to which an appreciable section of the international community adhered for many years.13

Yet, earlier in this advisory opinion the Court said: “The entitlement to the resort to self-defense under Article 51 is subject to certain restraints. Some of these restraints are inherent in the very concept of self-defense . . . [such as] the conditions of necessity and proportionality.”14 It thus seems that there is a particularized right of self-defense that States have but not one that is generalized and unlimited. The Article 51 right is not a right that allows any measures at all when self-defense is at issue. Indeed the Court said that “States do not have unlimited freedom of choice of means in the weapons they use.”15 The highly controversial penultimate decision of the ICJ Nuclear Weapons case shows how tentative the Court is about its view of the justifiability of initiating war even in self-defense, and also how the Court nonetheless refuses to rule out the possibility of justification of such a war in the future. Here is the reasoning for the decision in regard to Question E: By seven votes to seven, by the President casting the deciding vote, It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of the State would be at stake.

Here the ICJ addresses the possibility that all nuclear weapons attacks are illegal but backs away from an absolute ban, and instead says that their use is contrary to international law today even in cases of self-defense. This certainly seems to be in keeping with the view that the ICJ’s interpretation of the United Nations Charter is close to a contingent pacifist document. One last case to consider is the ICJ’s 2004 Palestinian Wall case. The Court gives the same nuanced reading of Article 2(4) as the two previous ICJ cases we have examined. The court also reaffirmed the idea that “No territorial acquisition resulting from the threat or use of force shall be recognized as 13 14

Legality of the Threat or Use of Nuclear Weapons, para. 96. 15 Ibid., para. 78. Ibid., paras. 40 and 41.

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legal.”16 The Court then responds to Israel’s contention that the Wall was important for “military exigencies,” largely related to stopping Palestinian insurgents from mounting attacks on Israeli citizens. The Court argues that the restrictions on the movement of Palestinians must meet a high threshold consideration: it is not enough that such restrictions be directed at the ends authorized; they must be necessary for the attainment of those ends. As the Human Rights Committee put it, they “must conform to the principle of proportionality” and “must be the least intrusive instrument amongst those which might achieve the desired result.”17

It should be noted that Article 51 was said not to be relevant to the case because Israel was not responding to a direct threat from another State.18 Nonetheless, in the ICJ’s Wall case the Court endorses a substantial limitation on self-defense claims, or a state of necessity, which might allow for the justified use of force or recourse to war. Even though the Court recognizes that Israel has various legitimate security demands to respond to, including “numerous indiscriminate and deadly acts of violence against its population,” the construction of the wall is said not to be justified because the Court is “not convinced that the construction of the wall along the route chosen was the only means to safeguard the interests of Israel against the peril which it has invoked as its justification for that construction.” Notice that the ICJ here sets a very high threshold for satisfying the principle of necessity, even in a case where self-defense of Israel’s citizens is at stake.

IV

The debate about interpreting the Charter

Nearly all commentators agree that the original intent of the UN Charter was to outlaw war as the world had known it. But there is a serious disagreement about how States have chosen to regard the Charter, especially in light of the inability of the Security Council to play the active role envisioned by the Charter in mediating disputes between States and issuing sanctions to those States that did not follow the dictates of the Charter. In this section I will rehearse some of this debate and indicate why these views largely support the interpretation of the Charter, at least given its original intent, that I have indicated above, namely that the Charter is close to a contingent pacifist document. In a very influential article, the distinguished scholar Louis Henkin defended the view that the Charter should be read as outlawing nearly all forms of war. Early in the article, Henkin contends that: 16 17

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para. 87. 18 Ibid., para. 139. Ibid., para. 136.

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The Charter reflected universal agreement that the status quo prevailing at the end of World War II was not to be changed by force. Even justified grievances and sincere concern for “national security” or other “vital interests” would not warrant any nation’s initiating war. Peace was the paramount value . . . War was inherently unjust. In the future the only “just war” would be war against an aggressor – in self-defense by the victim, in collective self-defense of the victim by others, or by all . . . Change – other than internal change through internal forces – would have to be achieved peacefully by international agreement. Henceforth there would be order so that the international society could concentrate on meeting better the needs of justice and human welfare.19

Henkin indicates that there was a host of ambiguities and unclarities that needed to be resolved, but that the original idea behind the UN Charter was clear. Henkin then discusses how the Charter has been received, especially by States around the world, and how to understand the emerging customary international law on this issue: governments generally have insisted on the interpretations most restrictive of the use of force: The Charter outlaws war for any reason; it prohibits the use of armed force by one state on the territory of another or against the forces, vessels, or other public property of another state located anywhere, for any purpose, in any circumstances. Virtually every use of force in the years since the Charter was signed has been clearly condemned by virtually all states. Virtually every putative justification of the use of force has been rejected. Over the years since the Charter’s adoption, even states that have perpetrated acts of force, when seeking to justify their acts, have not commonly urged a relaxed interpretation of the prohibition . . . Indeed, the community of states has acted formally to tighten the Charter’s restrictions.20

Henkin acknowledges that exceptions have been recognized, such as wars fought for humanitarian reasons or in support of self-determination of peoples. He points out that “It has not been accepted, however, that a state has a right to intervene by force to topple a government or occupy its territory even if that were necessary to terminate atrocities or to liberate detainees.”21 Yet, Article 51 has also been interpreted to allow a State to defend itself, despite the prohibitions on the unilateral use of force. And here there has been quite a variety of opinions. Nonetheless, everyone agrees, says Henkin, that “the right of self-defense, individual or collective, is subject to limitations of ‘necessity’ and ‘proportionality.’”22 And as we saw in the previous section, courts have given fairly strict readings of these requirements. Henkin makes a good case for the proposition that the UN Charter can be read as moving close to a contingent pacifist document. 19

20

Louis Henkin, “The Use of Force: Law and U.S. Policy,” in Right v. Might: International Law and the Use of Force (Washington, DC: Council on Foreign Relations, 1989), selections repr, in Janis and Noyes, International Law, p. 420. 21 Ibid., p. 422. 22 Ibid., p. 424. Ibid., p. 421.

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In another very influential article, Michael Reisman argued for a somewhat different interpretation of the Charter from that of Henkin. He begins his essay by stating his view in opposition to those like Henkin: Its [Article 2(4)] sweeping prohibition of the threat or use of force in international politics was not an autonomous ethical affirmation of nonviolence . . . Article 2(4) was embedded in and made initially plausible by a complex security scheme, established and spelled out in the United Nations Charter. If the scheme had operated, it would have obviated the need for the unilateral use of force.23

For Reisman, that security scheme has faltered due to the weakness and stalemate at the Security Council, resulting in the effective abrogation of the lofty ideals of the UN Charter’s Article 2(4). Since the security scheme has not worked, the UN has basically left it to the strongest States to impose their will on the rest of the States. Indeed, Reisman argues that given the actual political situation on the ground, “a mechanical interpretation of Article 2(4) may be to superimpose on an unwilling polity an elite, an ideology, and an external alignment alien to its wishes” including “grave deprivation of human rights for substantial numbers and strata of the population.”24 But Reisman seems to recognize that such a mechanical interpretation of Article 2(4) of the Charter nonetheless sets a normative goal that would impose rather stringent limits on whether States could initiate unilaterally the use of force. And now that the Cold War is over, the UN’s Security Council might be able to assume the role that had been planned for it in imposing its judgment over that of individual States about when and whether to use force. Another highly influential scholar who entered the debate about how to understand the UN Charter’s Article 2(4) was Thomas Franck. Franck argued that there is a pronounced two-tiered structure to the UN Charter’s attempt to regulate the use of force by States. What he called the “upper tier” set out “a normative structure for an ideal world.”25 The intent of the Charter at the upper tier envisioned the ideal that “Collective security is to be achieved by use of international military police forces and lesser but forceful measures such as diplomatic and economic sanctions. Recourse to such measures is to be the exclusive prerogative of the United Nations acting in concert.”26 Wars, as they had been known, where States initiated the use of force unilaterally, were to be replaced by a worldwide police force that operated very differently from normal armies. This was the normative ideal. 23

24 25

W. Michael Reisman, “The Criteria for the Lawful Use of Force in International Law,” Yale Journal of International Law, 10 (1985) 279–85, repr. in Janis and Noyes, International Law, p. 426. Ibid., p. 429. 26 Ibid., p. 2. Thomas Franck, Recourse to Force (Cambridge University Press, 2002), p. 3.

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Franck also postulated that there was a lower tier that came into operation when it was clear that the ideal was not working. In this more realistic tier States may operate on their own when self-defense requires it, “subject to certain conditions.”27 But even this more realistic realm was soon seen to fail because of the advent of the Cold War and the ingenuity of States to design indirect means of aggression, often through the use of insurgents.28 So, on this analysis, whatever the normative promise of the UN Charter, States found ways not to limit their initiating of war. The question to ask is whether the restrictions that States are subject to even when they initiate war for self-defense are so significant as basically to rule out war. As we saw in Section III, a string of decisions by the International Court of Justice seemingly favors the view that the use of force characteristic of war is indeed outlawed by the Charter. Even the exception for self-defense is so circumscribed that it makes the use of force very different from what it had been. Indeed, Franck worries that the way the Charter has been interpreted by the ICJ has made it impossible for a State to respond effectively to self-defense concerns because the State must wait until it has been the subject of an armed attack before it can act to defend itself, and this is often too late. Notice that Franck’s complaint actually supports the view that the Charter is normatively close to a contingent pacifist document. Nearly all commentators agree that the original normative idea behind the UN Charter was to abolish war, at least as the world had known war. The commentators do not even disagree about how the international courts have interpreted the Charter. The disagreements we have just rehearsed are primarily about how States and policy-makers have interpreted the Charter and why some policy-makers have lost faith in the Charter, especially during the Cold War when the Security Council was paralyzed. It is certainly clear that the Charter has not managed to eliminate war as we have known it. But again, this does not mean that the Charter is not normatively close to a contingent pacifist document. Contingent pacifism is a normative doctrine, not a doctrine that describes or even explains what States actually do in the world today. As a normative matter, very few commentators disagree that the UN Charter was meant to condemn war and to urge that war, as we had known it, should be outlawed. V

Arguments for pacifism from the UN

In the previous sections I have argued that the United Nations Charter had the promise of becoming something like a contingent pacifist document. The UN Charter embodies the idea, in Articles 2(4) and 51, that wars should not be 27

Ibid., p. 3.

28

Ibid., pp. 3–4.

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fought by States except when the UN has sanctioned them or in emergencies involving individual or collective State self-defense, and even then only until the UN can respond. This is at least similar to a contingent pacifist position since States are nearly outlawed from engaging in war. It is only nearly a contingent pacifist position because there is one class of exceptions, where a State’s selfdefense is involved and the UN has not yet acted. And while this is thought to be a rare instance, it could occur. The UN is only “nearly” a contingent pacifist institution, in that war is ruled out for States only in nearly all cases – and this becomes the default position. Contingent pacifism is on the continuum between a robust traditional Just War position and a traditional pacifism. Both this UN view and regular contingent pacifism are middle positions that are contingent on the current conditions of political leaders and military tactics, often understood from a Just War perspective, but with the conclusion that very few if any wars are justified today. Many believe that this nearly pacifist position of the UN is misguided or unrealistic. I see the fact that the UN’s position is nearly a contingent pacifist one as one its strengths. But to see this one must argue that contingent pacifism is plausible in just the way the UN Charter indicates. Support for contingent pacifism provides support for those who refuse to fight in specific wars today, or who counsel people not to fight in these wars. One need not be opposed to all wars, as is true of traditional pacifists, justifiably to refuse to fight in particular wars today. Indeed, except in emergency cases, where self-defense requires armed conflict temporarily, no one should be counseled to fight in today’s wars. And as the restrictions mount even on self-defensive wars, the UN Charter holds the promise of being something like a contingent pacifist document. In addition, I would add two things in defense of the UN’s normative promise. First, an individual State’s self-defense is normally not best accomplished by a war that seeks to defend a State. There are nearly always other things a State can do, other than initiate war, in order to defend itself. In addition, a State rarely has a right of self-defense that requires it to force its citizens to fight. State self-defense is not sufficiently analogous to personal self-defense, as David Rodin has persuasively argued in his seminal work on State selfdefense.29 State self-defense is the defense of territorial integrity or sovereign immunity. These characteristics of a State are not like the life of a person. A State can cease to exist today and tomorrow another State can rise from the old State’s ashes. Contrary to mythology, human lives do not regenerate in such a fashion. And the new State may be better able to protect the lives of people in the State than the old one did. Secondly, humanitarian wars are almost always a bad idea. Again, there are almost always better options than war and armed conflict to counteract a 29

See Rodin, War and Self-Defense.

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humanitarian crisis. Police actions, such as peace-enforcing actions, are often more likely than armed conflict or wars to have the result of ending humanitarian crises. And while it is sometimes necessary for a war to be waged to protect a people from mass atrocity, especially if it is an atrocity that is instigated by a State, these cases are very rare indeed. The reason for this, as I have argued earlier, is that the use of massive military force characteristic of war is not often effective in stopping a mass atrocity that is being carried out by neighbor against neighbor. One of the reasons for this is that humanitarian crises rarely are instituted in such a way that there are military targets for humanitarian war to be directed toward.30 Another thing to consider is how customary international law might affect my argument about the nearly contingent pacifism of the United Nations. Customary international law is understood to be based in the practices of States. It is arguable that many States act as if they are not restricted by Article 2(4) of the Charter since there certainly are wars that have continued into the twentyfirst century. But there is a second element of customary international law that is not so clearly met in support of the idea that customary international law fails to recognize the interpretation of Article 2(4) I have provided. Customary international law also requires a showing of opinio juris, that is, the idea that States act as if they are bound. If there is a customary international law favoring wars of self-defense, then States would not condemn each other for starting wars nor would they worry about appearing to violate Article 2(4) when they initiate wars. Yet, as far as I can tell, the vast majority of States today act as if they are bound by Article 2(4), not that they are not bound. To pick the United States as an important State actor, when the US has initiated war it has first sought to get a coalition of States to accompany it and has gone to the Security Council to get a resolution authorizing it to initiate war. This seems to be the action of a State that feels that it is bound by Article 2(4)’s prohibition on the unilateral decision to go to war. Indeed, one recent commentator, Tom Ruys, has considered whether customary international law is changing concerning the use of force. Ruys argues for a continuing “restrictive” view of Article 51’s exception. But a number of notable scholars, such as Claus Kress, have argued that customary international law seems to be moving in the direction of a somewhat more expansive reading of Article 51.31 While I disagree with Kress and would support the conclusions of Ruys, I acknowledge that the matter is far from settled. What I have tried 30 31

On this point see my book, Genocide, chap. 12. See Tom Ruys, ‘Armed Attack’ and Article 51 of the UN Charter: Evolutions in Customary Law and Practice (Cambridge University Press, 2010). Also see Claus Kress’s review of Tom Ruys’s book, including Kress’s contrary support for the more expansive understanding of customary international law concerning self-defensive use of force, in British Yearbook of International Law, 83 (2013), 1–11.

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to provide is a reason to think that the UN holds out the promise of something like contingent pacifism. VI

Objections

In this final section I will respond to several objections to and criticisms of the arguments I have set out in earlier sections of this chapter. The first objection is that I have not taken account of the “new” wars that are at the center of most of the disputes in international law today. War today is not often of the interstate variety. More commonly war is conducted between a State and a non-State actor, or between two groups struggling for control of a State, as in a civil war. The tactics that are used in these “new” wars are virtually the same as those used in the older interstate wars. But in these cases, the application of the UN Charter’s Article 2(4) has been called into question by many commentators. If for no other reason, the UN Charter envisioned the use of force as being something employed by one State against another State and yet this is not at all what is the normal use of force today. Indeed, the UN Charter seems to be quite accepting of wars not fought between States and hence cannot be any kind of pacifist document. My response is to agree that there is ample evidence for thinking that the UN Charter does not rule out wars of liberation or wars of secession that are aimed at ending oppression. Thomas Franck cites many of these sources as does Louis Henkin. And Tom Ruys argues that “today non-State actors can (exceptionally) commit ‘armed attacks.’”32 So, in this respect if not in others, there are “wars” that the UN Charter would countenance. This means that the UN Charter is only close to a contingent pacifist document. Yet, it is also not completely clear what contingent pacifists should say about “wars” of liberation. Those traditional pacifists who opposed all war as well as all violence would of course not support wars of liberation. But the contingent pacifists today, as well as those in the past such as Erasmus, might very well support such properly called police actions, perhaps seeing that it is in principle possible to support acts such as these, while still thinking they will be very rare indeed. Christine Gray has emphasized a different aspect of the ICJ’s Nicaragua decision than I did earlier. She thinks that the Court “seems to have accepted the possibility of a dynamic interpretation of Articles 51 and 2(4) based on the development of state practice,”33 that might countenance wars of liberation. I find Gray’s analysis quite fascinating on this issue. But as I argued in earlier chapters, I do not think that the strategy of using lethal force for humanitarian 32 33

Ruys, ‘Armed Attack’, p. 493. Christine Gray, International Law and the Use of Force (Oxford University Press, 2004), p. 8.

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purposes in so-called “humanitarian intervention” is consistent with the spirit of the development of international law. This seems to be the case when considering the original intent, and even the subsequent interpretations, of the Charter by the International Court of Justice and other tribunals. The possibility of a justified war of humanitarian intervention must indeed be conceded, but the UN Charter’s guiding ideals seem not to countenance more than the rarest of such interventions. The second objection is that I have not given a sufficient account of the role of self-defensive wars in the Charter system. It is true that Article 51’s reference to the inherent right of self-defense is not terribly clear. But in the French version of Article 51, self-defense is said to be a “droit naturel” – a natural right of States. This terminology seems to convey a very strong normative message. The right of self-defense is not just something that inheres in what it means to have States, but it is something that exists prior to the founding of States, and cannot be derogated. A natural right to engage in violent force to defend oneself is about as strong a normative claim as one can make and seemingly not one that is consistent with any form of pacifism. My response is that the language of natural rights and natural law is not often heard today. This language is indeed strongly normative and implies moral requirements and liberties. If States are said to have a natural right to engage in the use of force in cases of self-defense then this is a liberty that the States cannot be denied. But the question arises as to what that natural right gives States the legal liberty to do. Does a State’s right to defend itself mean that the State that is the bearer of the right has a liberty to do anything that would prevent or repel the attack or merely what is necessary to defend against the attack? Can a State’s natural right to defend itself entail only that some tactics, and surely not any and all tactics, be put in place to prevent or repel the attack? In the domestic laws of most States, individuals retain the right of selfdefense but in many cases that right only entails that the law enforcement officials have the liberty to defend the person who is attacked. Of course if the police will not or cannot defend the individual citizen, then the citizen retains the liberty to defend himself or herself. Similarly, it is my view that the promise of the UN Charter in international law does not entail that in every case, or even in any cases, the State has the unilateral right to use lethal force. What the UN Charter envisioned was that just as the State has a monopoly on the domestic use of force, except in very rare cases, so the United Nations has a monopoly on the international use of force, except in very rare cases. Such a view holds out the promise of being nearly a contingent pacifist position in international law. A third objection is that the clear acceptance of the collective use of force in the UN Charter is not consistent with any form of pacifism, contingent or otherwise. In the past wars have often been waged by a collection of States

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against another State or collection of States. The recognition in the Charter that such wars are not to be abolished, indeed to be specifically allowed, is an indication that the Charter cannot be seen as a pacifist document. All of the traditional definitions of war can accommodate these wars waged by collections of States rather than wars waged by single States. Indeed, the collective security arrangement of the UN does countenance, in Chapter VII of the Charter, the collective use of force when nonviolent means have failed to keep the peace or to prevent large-scale abuse of human rights. My response to this objection is again to remind my readers that the UN promise is that the collective use of force is to be under the auspices of the Security Council according to the Charter. This is a very important limitation in my view. War can indeed be waged by collections of States just as it can be waged by individual States. But war initiated and restrained by the Security Council casts such “war” in quite a different light. There is an important provision of the Charter, Article 54, which seems intended to govern all collective security operations. The Security Council shall at all times be kept fully informed of activities undertaken or in contemplation under regional arrangements or by regional agencies for the maintenance of international peace and security.

The idea here is not merely to keep the Security Council informed for information’s sake, but so that the Security Council can easily monitor and control the use of collective defense mechanisms operating under the Charter. A fourth objection is that even if my interpretation of the contingent pacifist promise of the UN Charter is right, the failure of the promise does not bode well for pacifist projects generally. In a sense, the world tried a contingent pacifist position at the founding of the UN. But the world has so conclusively rejected that model that this should be a major drawback for anyone today who contemplates adopting a contingent pacifist position, or any other pacifist position. This objection is very difficult to address without looking more closely at why the UN promise has failed to be realized, something that is far beyond the ending of this section. I certainly recognize that pacifism, in all its manifestations, is subject to the objection that it is impractical. In only partial response I would point out that there is a growing realization that the “hot spots” of today are often ones that involve “police actions” or “peace-keeping” efforts, rather than wars of the sort that characterized the history of modern Europe from the sixteenth to the twentieth century. The Charter sets up an elaborate set of mechanisms to make sure that lethal force is only used as a last resort, and then only under the explicit authorization and implicit control of the Security Council. These mechanisms guarantee, or are supposed to guarantee, that war as the world had known it before the UN Charter’s founding should not take place. By calling the UN Charter nearly a

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contingent pacifist document, or viewing it as holding out the promise of being such, I have aimed to call attention to this fact. But in addition, I have tried to show that nearly all aspects of the security mechanism of the UN Charter are aimed at curtailing and in the worst-case scenario greatly restricting the use of force by States, at the moment and into the foreseeable future. While many scholars have recognized the legitimacy of various claims I have made in this chapter, today it is not often admitted that the Charter has the promise of being a nearly contingent pacifist document. Indeed, even among people who teach international law, the idea that the UN Charter could be seen as a contingent pacifist document is often not seen as plausible. Yet the promise and the clear normative mandate of the UN Charter is to abolish war as we have known it and hence to place the Charter normatively very close to the contingent pacifist position I have been describing and defending.

8

Human rights law and the right to life during war

In previous chapters I discussed how political and moral philosophers who work in the Just War tradition are beginning to see that human rights create duties on States that could be seen to support contingent pacifism. In the current chapter I will argue that similar things are true for the turn toward human rights in international law today. In my view, the literature in political and moral philosophy mirrors the literature in international law in beginning to see that conduct during war and armed conflict cannot be understood as it has been and still show respect for human rights. International humanitarian law has in the past largely followed the Just War tradition in regarding some wars as just even though war involves the intentional killing of humans. But that is beginning to change with the human rights revolution that is sweeping across international law, just as it has affected the moral and political philosophers of the Just War tradition. In this chapter, I will first describe the conflict between human rights and international humanitarian law. In the second section, I will discuss how the recourse to the Martens Clause as a common source of norms governing the conduct of war is also beginning to move international law closer to some version of contingent pacifism. In the third section, I will discuss various other ways that theorists and courts have sought to reconcile the two regimes of international law, especially concerning the doctrine of lex specialis, explaining why these attempted reconciliations move international law closer to contingent pacifism than it had been. And I will finally end by discussing various objections to what I have argued in this chapter. I

Human rights law and international humanitarian law

International human rights law is currently regarded as beginning to make inroads into traditional international humanitarian law. This is a challenge that has been bubbling up in various international law documents for more than fifty years. The law is still not settled but today nearly everyone agrees that human rights law is applicable in at least some wartime situations. In this section, I shall first examine this issue as it arose in several court cases recently. 156

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In the Case of Al-Skeini,1 decided on July 7, 2011, the European Court of Human Rights held that Article 2 of the Human Rights Act applied to States whose agents were acting outside the territorial boundaries of that State. In particular, the Court held that the United Kingdom could be held liable for the arbitrary killing by its soldiers of civilians in Iraq. Armed conflict has historically been governed by humanitarian law, which also recognizes prohibitions on arbitrary killing of civilians. What is noteworthy is that in Al-Skeini, the application was made in terms of violations of human rights law applicable during the period of occupation following the Iraq War, and the Court allowed such an application, ultimately deciding in favor of the victims’ families. In Al-Skeini, the ECHR relied in substantial part on the International Court of Justice (ICJ) Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (July 9, 2004), where it was held that both international humanitarian law and human rights law applied in cases of armed conflict. In that case, the ICJ rejected Israel’s claim that “humanitarian law is the protection granted to conflict situations such as the one in the West Bank and Gaza Strip, whereas human rights treaties were intended for the protection of citizens from their own government in times of peace” (para. 90). Human rights treaties do allow for derogation “in times of public emergency which threaten the life of the nation and the existence of which is officially proclaimed.” But, such derogation is only allowed “to the extent strictly required by the exigencies of the situation” (para. 90). In the 1996 case on the Legality of the Threat or Use of Nuclear Weapons, the ICJ summarized the arguments of certain States: “the Covenant [of Civil and Political Rights] was directed to the protection of human rights in peacetime, but that questions relating to unlawful loss of life in hostilities were governed by the law applicable in armed conflict.”2 Yet the ICJ rejected this position, arguing as follows: the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities.3

The ICJ thus rejects the traditional separation of humanitarian and human rights law, allowing that human rights law has application in all contexts, but the ICJ ruling then sets up a possible conflict with humanitarian law in armed conflict cases. 1 2

Case of Al-Skeini and Others v. United Kingdom, European Court of Human Rights (Grand Chamber), Application no. 55721/07, July 7, 2011. 3 Ibid., para. 25. Legality of the Threat or Use of Nuclear Weapons, para. 24.

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In the 2004 case on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, the ICJ portrays the arguments of the State of Israel as follows: Israel denies that the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both of which it has signed, are applicable to the occupied Palestinian territory. It asserts that humanitarian law is the protection granted to a conflict situation such as the one in the West Bank and Gaza Strip, whereas human rights treaties were intended for the protection of citizens from their own Government in times of peace.4

The position of Israel summarizes the traditional separation of humanitarian and human rights law. But the ICJ declares that this understanding has been rejected since at least the 1996 Nuclear Weapons case. In the Palestinian Wall case, the ICJ said that “the drafters of the Covenant did not intend to allow States to escape from their obligations when they exercise jurisdiction outside their national territory.”5 Thus the ICJ rejected Israel’s claim that there is a clear separation of humanitarian and human rights law, and allowed that human rights law may be applicable in times of war or armed conflict, especially concerning the right to life. Human rights are characterized as having universal scope, both in terms of who is subject to the rights and in terms of the addressee of these rights who must protect them. If the most basic of the human rights, the right to life, is applicable in times of war, it seems, on first sight, that war itself would never be justified given that all wars involve massive intentional deprivations of the right to life of civilians and soldiers. And this would mean that human rights law conflicts directly with humanitarian law, which has traditionally recognized that the killing of soldiers can be justified as long as the soldiers are not made to suffer unnecessarily. It is a long-standing part of humanitarian law that civilians can be justifiably killed during war as long as they are not directly targeted and their killing is necessary and also proportionate to legitimate military objectives. So, international law is faced with conflicting norms concerning violations of the right to life during times of war. The right to life is a core right of the Covenant on Civil and Political Rights and cannot be abrogated even during times of national emergency. Yet, in such emergencies, mounting an armed defense or counterattack may be the only way for a State to survive the hostile aggression of a neighbor State. In such a case, recourse may be made to the ICJ’s doctrine of lex specialis to allow for humanitarian law still to trump human rights law in some contexts. I discuss this issue later in this chapter. 4 5

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para. 102. Ibid., para. 109.

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Some notable interpreters of this controversy have recently seen the insertion of human rights law into war and armed conflict situations as a pacifist challenge to international humanitarian law. The International Committee of the Red Cross issued an Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law that employs human rights law greatly to restrict justifiable killing during armed conflict. The applicable part of Section IX of the ICRC’s guidance states: In conjunction, the principles of military necessity and of humanity reduce the sum total of permissible military action from that which IHL [International Humanitarian Law] does not expressly prohibit to that which is actually necessary for the accomplishment of a legitimate military purpose in the prevailing circumstances.6

Seemingly, for each decision of a commander to use lethal force to be legal it must meet the necessity test – it must be the only way that a legitimate military objective can be accomplished. A recommendation from the ICRC’s Interpretive Guidance says this about military necessity: In addition to the restraints imposed by international humanitarian law on specific means and methods of warfare, and without prejudice to further restrictions that may arise under other applicable branches of international law, the kind and degree of force which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances.7

Notice the use of the term “actually necessary.” I believe that this is the appropriate standard of military necessity, as I argued in Chapter 5. Another crucial component of the ICRC’s Interpretive Guidance made a seemingly strong point by saying: It would defy basic notions of humanity to kill an adversary or to refrain from giving him or her an opportunity to surrender where there manifestly is no necessity for the use of lethal force. In such situation, the principles of military necessity and of humanity play an important role in determining the kind and degree of permissible force against legitimate military targets.8

The ICRC also cited Jean Pictet, one of its most important theoreticians, for the idea that “if we can put a soldier out of action by capturing him we should not wound him, if we can obtain the same result by wounding him, we must not kill him, if there are two means to achieve the same military advantage we must choose the one which causes the lesser evil.”9 6 7

ICRC, Interpretive Guidance, sect. IX, pp. 78–79. 8 Ibid, sect. 9, p. 82. Ibid., sect. IX, p. 77.

9

Ibid.

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The idea here seems to be that military necessity is to be understood in a very restrictive way – “what is actually practically necessary” – instead of the very expansive way that military necessity was traditionally understood – serving any legitimate military objective – and would make this one of the chief documents to afford to soldiers what respecting their dignity seems to require. In the accompanying commentary, the ICRC seems to make the case for such a narrowed reading of the military necessity requirement: Loss of protection against direct attack, whether due to direct participation in hostilities (civilians) or continuous combat function (members of organized armed groups), does not mean that the persons concerned fall outside the law. It is a fundamental principle of customary and treaty IHL that “[t]he right of belligerents to adopt means of injuring the enemy is not unlimited.” Indeed, even direct attacks against legitimate military targets are subject to legal constraints, whether based on specific provisions of IHL, on the principles underlying IHL as a whole, or on other applicable branches of international law.10

Again this document seems to say that even if the solders in question are your enemy and even if these soldiers are part of a force that is involved in a direct attack against your unit, what you can lawfully do, as a matter of military necessity, is greatly limited. What the ICRC here seems to be calling for, or someone could argue in favor of, is the use of some human rights norms in battlefield situations. Yet, it seems that the human rights understanding of necessity, often employed in speaking of domestic law enforcement situations where a police officer is confronted by someone acting in a threatening way, is not quite what the ICRC has in mind when addressing the rights of those who directly participate in armed conflict. One could conjecture that the reason that the ICRC might be moving toward incorporation of something like human rights norms into a traditional humanitarian norm setting is that there is a need to support human dignity, as the UN Charter made clear, and that the demand to respect the dignity of all parties during war seems not to be well supported merely by concentrating on the traditional humanitarian norm of military necessity. After much criticism, in 2012 the ICRC convened an Expert Meeting to reassess its policy statement of 2009. A report was issued in November of 2013 in which the ICRC raises doubts about how the 2009 Interpretive Guidance should be understood. While the 2013 report begins by saying that “it does not purport to provide the ICRC’s legal position on these issues,”11 nonetheless there seem to be significant differences between the 2013 Expert Meeting report and the 2009 Interpretive Guidance. This discrepancy can be seen in the 10 11

Ibid., Commentary on sect. IX. International Committee of the Red Cross, Report of the Expert Meeting, The Use of Force in Armed Conflict (Geneva: ICRC, 2013), p. v.

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following statement by an ICRC lawyer: “Killing combatants can be lawful in armed conflict unless there is manifestly no need to use lethal force, which is a pretty limited set of circumstances in armed conflict.”12 Here is a relevant passage from the 2013 ICRC report, “The Interplay between the Conduct of Hostilities and Law Enforcement Paradigms”: Under the law enforcement paradigm, the presumption is that State agents must arrest persons and not kill them on sight (i.e. “capture rather than kill”). It is only if the arrest is at risk, and if the person poses an imminent threat to life, that the use of lethal force is authorized as a last resort. Under the conduct of hostilities paradigm, the presumption is the reverse. In the ICRC’s view, a legitimate target may be killed at any time, unless it is clear that he/she may be captured or otherwise rendered hors de combat without additional risk to the operating forces. This is so because “it would defy basic notions of humanity to kill an adversary or to refrain from giving him or her an opportunity to surrender where there manifestly is no necessity for the use of lethal force.” This fundamental difference indicates that the determination of the applicable paradigm is crucial.13

The ICRC appears now to be saying that it only defies notions of humanity to kill when one could capture an adversary if capturing had no additional risks, of any sort, for the soldier. Yet, this view seems not obviously justified by reference to the principle of humanity or more importantly to the principle of military necessity we explored earlier in normative terms. If soldiers have forfeited their right to life, at least as it would normally be understood for civilians, there should be a heightened concern for how necessity is understood. In domestic law in many States, suspected criminals are treated as having forfeited the right to life or liberty, to at least a certain limited extent. But the police officer who would shoot at a fleeing suspected criminal has the burden of showing that shooting at the suspected criminal was (strictly practically) necessary. In the case of violating the right to liberty of the suspect, the police have the right to shoot to maim the suspect, and in the case of threats to the life of the police officer, the police can shoot to kill the suspect either to stop the criminal from fleeing or for the self-defense of the police officer. In either case, the goal of stopping the fleeing suspect or preventing the suspect from killing the police officer, the actions taken by the police must be necessary for accomplishing that goal, with no less violent means as a viable option that is reasonably conceivable by the police officer. The new understandings of necessity are meant to apply predominantly to the killing of noncombatants taking part in direct hostilities, but in my view they 12

13

Private correspondence with Gary D. Brown, International Committee of the Red Cross, Deputy Legal Advisor, Regional Delegation for the United States and Canada, February 2014, on file with the author. ICRC, Use of Force in Armed Conflict, p. 17.

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are clearly also applicable to at least some soldiers. If one focuses on protecting the dignity of people, it is hard to see how one can distinguish noncombatants who take a direct part in hostilities from combatants who operate in a similar manner. And while it is possible to distinguish the lives of combatants from those of noncombatants in many respects, the dignity of soldiers, at least in terms of the moral minimum that must be displayed so as not to deny the dignity of a human, is on the same level for combatants and noncombatants. One thing this means practically is that in some few cases it may be that the rights of combatants will outweigh the rights of noncombatants, perhaps in decisions about whether to send large numbers of soldiers into a civil war to try to stop what seems to be only a possibility of civilian loss of life. There have been several significant criticisms of applying this idea to soldiers. I agree that the ICRC Guidance should make us all rethink the rights of soldiers and that it is now imperative to do so given the changing character of war and armed conflict, which has blurred the distinction between combatants and civilians. I remain convinced that the overwhelming interpretation of the original 2009 ICRC Guidance was on the right track. One significant implication of the ICRC’s view of human rights law is that during armed conflict “it would defy basic notions of humanity to kill an adversary or to refrain from giving him or her an opportunity to surrender where there manifestly is no necessity for the use of lethal force.”14 Such a restriction makes most tactical decisions concerning lethal force during times of war very difficult for commanders to justify, seemingly supporting something like a contingent pacifist position. Of course, the ICRC Guidance concerns civilians who are taking an active part in hostilities, not combatants proper. But the line between these two categories is getting less and less clear. Various scholars have debated whether the ICRC has a correct understanding of what is the current state of jus in bello international law. From my perspective, what matters more is whether or not the ICRC has a defensible view of what the current state of international law should be. Jann Kleffner has been somewhat skeptical but has recognized that if the ICRC guidance is accepted it would indeed change the way we think of the legality of the conduct of war.15 I would concur in his assessment, and add that this would be a welcome result, moving us closer to the United Nations’ founding idea that war, as we have known it, is to be outlawed. Another source to consider is a decision by the High Court of Israel in 2005. Here the Israeli Court held that “a civilian taking part in direct hostilities cannot be attacked at such time as he is doing so, if a less harmful means can be 14 15

ICRC, Interpretive Guidance, sect. IX, p. 82. Jann F. Kleffner, “Section IX of the ICRC Interpretive Guidance on Direct Participation in Hostilities: The End of Jus in Bello as we Know It? Israel Law Review, 45/1 (2012), 35–52.

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employed.”16 The Israeli High Court came to the decision that Israel’s security forces could not confront terrorists in any manner they deemed appropriate. In the conclusion of the opinion, the Court tackles the central jurisprudential problem in this area. The saying “when the cannons roar, the muses are silent” is well known. A similar idea was expressed by Cicero, who said: “during war, the laws are silent” (silent enim legis inter arma). Those sayings are regrettable. They reflect neither the existing law nor the desirable law . . . Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law.17

The Court goes on to say that there is not a conflict but a close fit between the pursuit of national objectives and the protection of human rights. Those in Israel would have more reason than many others to disregard human rights in favor of self-defense given that Israel is surrounded by its enemies, and attacked often by them. But the High Court of Israel recognized that the battle against terrorism and its other enemies is also a battle of values. In that latter battle, restraint is crucial – even restraint that would rule out many standard tactics of war. The international legal scholars Theodor Meron18 and William Schabas19 have also concluded that taking human rights seriously in the law of war or armed conflict today will move us close to pacifism. In my view, this is indeed the direction in which international law should be moving as well.

II

The Martens Clause and human rights norms

In this section I will discuss how the attempts by those who wish to reconcile human rights with international humanitarian law make various arguments that could be seen as beginning to align with a contingent pacifist position. This point can be seen in the way that many international legal theorists refer to the Martens Clause in order to explain how to understand the intrusion of human rights norms into treaty regimes that govern international humanitarian law. I will begin with a detailed analysis of how the Martens Clause might be supportive of contingent pacifism.20 16 17 18 19

20

Public Committee Against Torture in Israel and Palestinian Society for the Protection of Human Rights and the Environment v. Israel, ILDC 597 (IL 2006), para. 40. Ibid., para. 61. Theodor Meron, The Humanization of International Law (Dordrecht: Martinus Nijhoff, 2006), p. 9. William Schabas, “Lex Specialis? Belt and Suspenders? The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of Jus ad Bellum,” Israel Law Review, 40/2 (2007), 592–613. I also explore the Martens Clause stipulation about public conscience in Chapter 11.

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The Martens Clause appeared first in the Preamble to the Hague Convention of 1899 but has been reproduced in many other international instruments since that time. Here is this important clause: Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of public conscience.21

Here the laws of humanity are normally thought to open the door for human rights considerations even if they are not part of black-letter international law. The Martens Clause is, by design, a source of law that is meant to be used when there are gaps in the current international law, or where the current sources of international law are somehow in conflict. There are arguably three different sources all listed together in the Martens Clause and I will examine each of them before drawing from this analysis some conclusions about how one might resolve the conflict between human rights and humanitarian law. The first source of law in the Martens Clause is principles of international law resulting from usages of nations. The reference to the usages of States can be interpreted as referring to customary practices of States that are unquestionably recognized as sources of international law. We looked at customary international law concerning the legality of initiating war in the previous chapter and now take up the laws of war concerning conduct-of-war considerations. What the Martens Clause may be adding is a moral grounding for such customs. The reference to usages may not be merely to customary practices of States but to normative principles of a different sort, namely those principles that are themselves used in resolving disputes among legal regimes. One could think of usages of States as giving rise to either substantive or procedural principles. Substantive principles could involve specific rights or duties. Procedural principles could involve mechanisms for resolving conflicts or for filling gaps. If the Martens Clause is understood as recognizing the validity of customary practices of a procedural nature it could have a direct bearing on how we understand conflicts of rights or conflicts among rights and other norms. And one important way that States seem to recognize the resolution of conflicts between rights, especially basic human rights and other norms, is to give priority to human rights, as is true in the United States when core rights of the US Bill of Rights conflict with other legal norms. 21

See the Preamble to the 1907 Hague Regulations, all four Geneva Conventions of 1949, the Preamble of the 1977 Additional Protocol II, Article 1, para. 2 of the 1977 Additional Protocol I, and the Preamble of the 1980 Conventional Weapons Convention.

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A second source of law in the Martens Clause concerns the “laws of humanity.” Historically, the laws of humanity were seen as coextensive with the natural law. This was “law” in a somewhat attenuated sense. Hobbes famously said that the natural laws were not laws properly so called, unless they are considered laws of God set down for humans.22 In any event, laws of humanity are often seen as especially important and universally binding moral norms that in some way are linked to what it means to be a member of the community of humanity. Of course it is highly controversial whether there is such a community of humans and what laws govern it. What seem to count in this domain are basic human rights, the rights one has by virtue of being human. It is sometimes alleged that there are rights that must be respected if individuals are to have a minimally decent human life, such as the rights to life, liberty, property, and association. In a slightly different way, laws of humanity could be interpreted to be norms that all humans would accept under certain conditions that are highly reasonable. The conditions could be core minimalist ones such as those that support sustenance and security, as Henry Shue and others have claimed.23 The third possible source of law referred to in the Martens Clause is that which is affirmed by the dictates or requirements of public conscience. I will later say quite a bit about the possible alternatives of what the public conscience could refer to, and how it contrasts with private conscience, as I explore the idea of selective conscientious objection, which is itself very closely related to contingent pacifism. Here let me merely indicate one way that this possible source of law might be different from the other two I have already discussed in interpreting the various formulations listed in the Martens Clause. Public conscience could stand for the conscience of a particular community as distinct from the individual conscientious judgments of the members of that community. Law generally only motivates the conformity and fidelity that is necessary for it to function effectively when the sentiments of the society are congruent rather than incongruent with the law. Law could operate with a certain amount of success if it is only supported by each individual judging in terms of private conscience that the law should be obeyed. But long-term and complex operations need a communal sense of conformity and respect for the law. Public conscience can be a source of norms as well as a source of motivation. The conscience of the community has become an especially important idea as theorists and courts have tried to explain why such things as genocide 22

23

See Thomas Hobbes, Leviathan (1651), ed. Richard Tuck (Cambridge University Press, 1996), p. 111. On this point see Larry May, Limiting Leviathan: Hobbes on Law and International Affairs (Oxford University Press, 2013). Henry Shue, Basic Rights (Princeton University Press, 1980).

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and crimes against humanity are so bad. They are often described as deriving their negative valuation from the fact that they offend the conscience of the community. Or more commonly, now mixing the possible sources of law in the Martens Clause, it is said that genocide or crimes against humanity offend the conscience of humanity. These various sources of substantive or procedural norms of international law are said to be the grounding norms for human rights law, and are especially offended by certain practices. Among the practices often mentioned is the idea of unilaterally deciding to go to war. Here the human rights approach is given priority over humanitarian law, which does not condemn all unilateral acts of war. But even here, not every war is ruled out by reference to the Martens Clause, since it is not clear that the public conscience, or laws of humanity, and less still the practices of States, would condemn the initiation of all wars. But it could be argued that the prohibitions of Article 2(4) of the UN Charter are additionally supported by the principles articulated in the Martens Clause. In particular, when theorists or courts seek out grounding for a judgment that war unilaterally initiated by a State is illegal, or that conduct during war is illegal, even though there are few sources of law that ground such a claim, recourse is made to the Martens Clause to show that human rights law generally has priority over international humanitarian law. But since there are some cases that are exceptions to this rule, the Martens Clause seems to ground at best a contingent pacifism. And most theorists think that the position grounded by the Martens Clause merely gives priority to human rights law in most but not all cases. Yet theorists continue to recognize the increasing importance of human rights norms in international law. In Ronald Dworkin’s last article, “A New Philosophy for International Law,” he said: The debate among Supreme Court justices in the United States about whether that court should cite foreign legal materials looks silly when the practice is defended by its proponents as simply providing helpful suggestions, as a law review article might, that judges are free to accept or disregard. Who could sensibly object to that? The practice becomes more consequential when the responsibility of individual nations to seek a jus gentium is noticed. International order is strengthened as the “general principles of law recognized by civilized nations” grows more uniform. Interaction between the international and the domestic laws of human rights is particularly important for that reason.24

Here is a reference to a similar source of law supportive of human rights, Article 38 of the Statute of the International Court of Justice, which lists general principles as its third source of law. 24

Ronald Dworkin, “A New Philosophy for International Law,” Philosophy and Public Affairs, 41/1 (2013), 2–30 (21).

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Dworkin thinks that States have an obligation to conform to international law and here seems to pick out human rights law as the key component of international law that should hold sway in all domestic as well as international courts. Such a view is supported by the idea that sources of law such as the Martens Clause and general principles of “civilized” States, are supportive of human rights norms that apply to all States regardless of whether those norms are formally acknowledged in treaties. Such sources of law could be seen as undergirding an approach that sees nearly all wars as problematic legally. Similarly, the Israeli Supreme Court has voiced the opinion that “This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it.”25 III

Reconciling human rights and humanitarian law

There is a debate about how to reconcile international humanitarian law and human rights law in armed conflict situations. In the Nuclear Weapons case, the ICJ referred to the doctrine of lex specialis as the way to resolve the difficulty. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant [International Covenant on Civil and Political Rights], can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.26

This is the ICJ’s attempt to reconcile the conflict and save humanitarian law from being completely swamped by human rights law. This statement of the lex specialis doctrine seems to give priority to humanitarian law over human rights law when it says that conflicts must “be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself,” and where the Covenant refers to the articulation of human rights law. But another way to understand the final part of the test is that human rights law alone does not determine what the applicable law is – but it must be decided also by reference to international humanitarian law. Notice that the test is to be employed anew for every “particular loss of life.” What is needed is a determination of whether a particular loss of life in war falls under an applicable humanitarian law. The laws of war articulated in The 25 26

Public Committee Against Torture in Israel and Others v. Israel and Others, Supreme Court, Israel, September 6, 1999, para. 39. Legality of the Threat or Use of Nuclear Weapons, para. 25. Also see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para. 106; and Case Concerning Armed Activities in the Territory of the Congo (DRC v. Uganda), International Court of Justice, Judgment of December 19, 2005, para. 216.

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Hague and Geneva Conventions for instance mention highly specific kinds of weapons and tactics that are proscribed. If the weapon or tactic about to be employed is in those lists then that is the applicable restraint. Yet it is unclear what to do if the particular loss of life does not fall under one of these provisions of humanitarian law. Seemingly, the two most plausible interpretations of the lex specialis doctrine are: (a) all acts and weapons not specifically proscribed in humanitarian law are allowed; or (b) all acts and weapons not specifically proscribed in humanitarian law are then regulated by human rights law. The ICJ’s Palestinian Wall case can be cited to confirm the reasonableness of both of these positions. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both of these branches of international law, namely, human rights law and, as lex specialis, international humanitarian law.27

The ICJ prefaced these remarks by noting that “the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind found in article 4 of the International Covenant on Civil and Political Rights.”28 Yet, as noted above, the right to life is not one of the rights that can be derogated. So, there seems to be a serious interpretive problem that calls for resolution. The problem arises at least in part because in human rights law, the right to life is not derogable. And yet in humanitarian law certain deprivations of the right to life are not considered arbitrary and are hence open to be allowed, or in other terms open to be derogated. On a straightforward reading of these two provisions there does not seem to be a way to reconcile human rights and humanitarian law concerning deprivations of the right to life that seem inevitably to occur in times of war and armed conflict. Lex specialis seems to be a doctrine that conflicts with the human rights law of the Covenant on Civil and Political Rights. Yet, the lex specialis doctrine is referred to for a resolution of the conflict between regimes of law in several ICJ opinions. One way to understand the lex specialis doctrine is that unless there are specific rules of humanitarian law which apply to a given situation, that situation is governed by human rights law. This liberal understanding of lex specialis also needs to be qualified by the requirement that certain rules of humanitarian law that would otherwise allow for non-arbitrary killing during war are to be overruled by human rights law. 27 28

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para. 106. Ibid.

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According to the Covenant, the right to life only protects against the arbitrary deprivation of the right to life, so lex specialis could be seen as not in tension with the Covenant insofar as it merely indicates that humanitarian law can be appealed to in some cases to show that the deprivation of the right to life was not arbitrary. So, the question becomes: Which are the deprivations of the right to life during wartime that are arbitrary and which are not? Soldiers should not be killed in a way that violates the requirement that lives should not be taken arbitrarily. If this is indeed the right way to understand the lex specialis doctrine then we can understand why the ICRC Guidance says that if there is some way to accomplish a given military objective other than killing an enemy, that action must be taken instead of killing the enemy. The ICRC Guidance does not say that all killing in war is outlawed, but makes it very difficult for commanders to wage war. In every instance the commander must not authorize the killing of enemies if they can be disabled or captured instead. And even in emergency situations, this must be the rule since the right to life is not to be derogated in times of emergency, as the Covenant has specified. In my view, such an understanding of the doctrine of lex specialis could be seen as beginning to move international law close to a contingent pacifist position, but arguably only a beginning. The strategies and weaponry that are allowable during war or armed conflict become greatly restricted if we take a liberal view of the lex specialis doctrine. And the conditions for the conduct of war will be very hard to satisfy in any given war. In the previous chapter we have also seen that the initiation of war could be seen as difficult to reconcile with a certain understanding of international law as well. On these admittedly non-standard readings, war as we have known it cannot be conducted without violating international legal requirements. IV

The St. Petersburg Declaration and the Lieber Code

There is some evidence that earlier ways of construing the laws of war also put restraint on killing during war. Indeed, in one of the first major statements of the rules of war in modern times, the St. Petersburg Declaration stated: That the progress of civilization should have the effect of alleviating as much as possible the calamities of war; That the only legitimate object which States should endeavor to accomplish during war is to weaken the military forces of the enemy; That for this purpose it is sufficient to disable the greatest possible number of men; That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable; That the employment of such arms would, therefore, be contrary to the laws of humanity.

Notice that the proper aim of military operations is said to be to “disable the greatest possible number of men,” not necessarily to kill as many of the enemy

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as one can. Of course killing could be justified if it were the only way to disable the enemy. Such a restraint was said to be necessary “in order . . . to conciliate the necessities of war with the laws of humanity.” Here, at least on one interpretation, already in 1868 is the core of the human rights approach to killing during war. As a conceptual matter this makes perfect sense. The principle of necessity in combat stipulates that military tactics are illegal unless they are necessary for achieving a legitimate military objective. The principle of necessity would be violated by a tactic that called for killing enemy soldiers when disabling them will accomplish the same objective. So the human rights approach to the law-of-war requirements that was sketched above may not be very radical at all since it is seemingly supported in historical documents that are canonical and also supported by good reasons. If commanders are mainly to be justified in disabling enemy soldiers, then only in certain very limited cases are they justified in killing enemy soldiers. Enemy soldiers can be disabled by being wounded, or captured, and these strategies must be clearly contemplated before it is justifiable to kill enemy soldiers. Yet, for commanders in the field, attempting to ascertain what tactics satisfy the laws of war, most killing will then be ruled out. But, commanders are not currently trained as much in tactics that disable rather than kill the enemy. So, for this change to occur, war as we know it would have to change radically. Such a change would again move international law closer to contingent pacifism. In addition, we should consider another seminal nineteenth-century document that seems to take a different stance, namely the Lieber Code. Unlike the St. Petersburg Declaration, the Lieber Code seems to countenance killing during war: Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor . . . Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.29

Notice two things here. First, killing must be necessary, in the sense of being unavoidable, for it to be legal. Second, the rules of war are thought to be intimately connected to what it means to be a moral soldier. The Lieber Code was drafted by Francis Lieber for the Union Army during the US Civil War. Lieber set out to diminish the carnage of war and to provide rules that would be supported by legal practice and also by military ethics 29

Lieber Code.

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codes. Military necessity was the key component of the rules of war as Lieber understood them. As we have seen, one reasonable interpretation of military necessity refers to what it is indispensable to do in order to achieve legitimate military objectives. Limiting military activities on the battlefield to those that are militarily necessary was the key to humanizing war. So, while killing could be justified by military necessity, there had to be a deliberative act that preceded the commander’s order to kill enemy soldiers. In addition, we should also consider other limits posed by military necessity on tactics and weaponry in the Lieber Code. Military necessity does not admit of cruelty – that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.

Again note two things. First, notice how extensive the rules are in terms of what is ruled out. And second, notice that there is a special category that deals with limitations based on post-war considerations. In the next chapter we will consider in more detail the post-war limitations that also could be seen to support or are consistent with contingent pacifism. Suffice it here to note that many instances of killing soldiers will indeed make a return to peace unnecessarily difficult. And the chief case here is where the killing of these soldiers is not necessary in the sense that non-lethally disabling the soldiers would have achieved the same military objective. In this sense, as well as several others, the Lieber Code sets similar limits on killing during war to those of the St. Petersburg Declaration, despite its dissimilarity in the way military necessity is defined.30 V

Objections

In this section I consider several challenges to what I have set out so far in this chapter. The first challenge is that I have neglected the lives lost through aggressive war, especially innocent lives of those who are unjustifiably attacked – such lives are also of paramount significance in human rights terms. If one is truly concerned about human rights abuses, then the rights of the innocent civilians and soldiers whose lives are jeopardized by war must be of paramount importance. And yet there seem to be many examples of States that wage aggressive 30

See my essay, “Humanity, Necessity, and the Rights of Soldiers,” unpublished essay in the possession of the author.

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war and so self-defensive use of force by attacked States should not be ruled out or diminished. This is historically the most often raised objection to traditional pacifism, and today it is still the most common response to the newer contingent pacifism. This worry is given increasing importance as the rights of all humans are in ascendancy. Prior to an emphasis on human rights or of the value of each individual life, such worries were not seen as being as important as they are thought to be today. I regard this objection to be highly important. Obviously, there are human rights that are jeopardized in some cases if a defensive war or armed conflict is not engaged in. And so those of us who oppose nearly all wars need to be able to give an account of how to deal with the many apparent cases of State aggression that need to be countered by force in order to prevent the abridgement of these rights. My response comes in two parts. First I would again point out that most “wars” today are not ones that are started by State aggression, but rather they are started by insurgents or other non-State actors. In addition, while the fear of one’s neighbor was common in the nineteenth and early twentieth centuries, the end of the Cold War has vastly dissipated such fears. Fear of a small terrorist cell is much more prevalent today than fear that one’s citizens will be overrun by an act of aggression by one’s neighbor States. I would also point out that even when there is the threat of aggression the United Nations is often able to mount a quick response that is backed by the counter-threat of force by coalitions of States that rally to the UN’s call. And in addition, diplomatic efforts, as well as economic sanctions, have played effective roles in doing what it is often thought that only military force can accomplish. The world is a different place today than it was in 1917 or 1937 and a lot of the difference comes from the institution of the UN and other multinational peace-keeping missions. A second challenge is that I have shown a bias in favor of those who are on the side of perpetrating human rights atrocities and in effect against the innocent people who are the victims of human rights atrocities. When a people’s own government is oppressing their rights, as we have seen recently in Bosnia, Rwanda, Kosovo, Iraq, Libya, Syria, and elsewhere, it will take armed force to stop the oppression. Pacifists of whatever stripe are not able to act in favor of the oppressed and in effect end up supporting oppressors by their opposition to armed force to stop or remove the oppressors. My response to this challenge is to admit that supporting contingent pacifism can have a conservative effect in that it sometimes does leave the world as it is and does not favor the kind of changes that could stop human rights atrocities. But if we examine the recent cases mentioned in the previous paragraph, it is very hard to see what kind of success has been had by the resort to armed force against oppressive regimes, or even what kind of success could have been achieved. To pick just one example, it is now very unclear that removing the

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tyrant, Saddam Hussein, from power in Iraq by armed force has made Iraq a more secure or less oppressive society. As I write this today, Iraq is going through a civil war that will likely last for many years. Indeed, in many such cases it will not be clear for many years whether armed intervention has had lasting positive effects in such cases. One thing that the critics of pacifism often fail to acknowledge is that the consequences of the use of armed force are very hard to predict.31 This is especially true because of unintended consequences. In Iraq today, there are unintended consequences of removing from power all of Saddam Hussein’s police as well as ministers and bureaucrats without having any sense of whether there were people who could be readily trained to replace them. Not only did the security of the people suffer for years until people could be trained to become regular police, but Iraq’s social services suffered massively because bureaucrats never were trained adequately to replace what had been a highly efficient, and not especially political, civil service in Iraq under Saddam. Third, one could argue that specialized weapons that are increasingly sophisticated are making it possible to fight wars that do not violate the rights of civilians, or soldiers for that matter, in the way that this occurred in the past. At very least, in the not too distant future, weaponry like drones holds out the hope that the conduct of wars can be justified in ways I have not given sufficient attention to. Yet, it is at least arguable that the risk of civilian casualties is still very high in today’s armed conflicts. While some weapons have achieved a greater level of accuracy, thereby potentially reducing the likelihood of collateral damage, it is also true that war and armed conflict is increasingly fought in cities where civilian casualties remain very high indeed. And civil wars are the most common type of war at the moment. In civil wars, civilian casualties are very difficult to minimize since combat operations often proceed by means of terrorizing tactics aimed at civilian centers, as I have also argued elsewhere.32 And the use of human shields also exacerbates these concerns. In addition, contemporary wars are increasingly not being fought by States but by non-State actors. The American Society of International Law has recently focused its annual conventions on the fact that the old rules of engagement do not seem to be relevant to the kind of asymmetrical armed conflict today. Insurgent combatants from non-State actors are not being trained in the rules of war, and are often ignorant of these rules. Rules such as those found in the Geneva Conventions are designed to make wars less likely to violate law-of-war considerations. But when combatants do not know of such rules, 31 32

Of course, the consequences of adopting a pacifist position are also often very hard to predict. This is one more reason to think that contingent pacifism is preferable to absolute pacifism. See May, War Crimes and Just War, chap. 5.

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as is increasingly true today, wars will not be likely to be just wars from the perspective of tactics and weaponry. A fourth challenge is that the diminishment or replacement of humanitarian norms by human rights norms will not clearly work out for the betterment of those who are still in uniform and occasionally are forced into combat roles. The norms of humanitarian law, especially the rules that prohibit targeting civilians and causing superfluous suffering to soldiers, have had a salient effect over the centuries. Unless it were possible to stop wars altogether, even wars held under the auspices of the UN, the rules of humanitarian law should not be diminished or replaced since doing so could produce horrible consequences for both civilians and soldiers. If human rights law swamps humanitarian law there will be less humane wars, surely not what human rights advocates want. I recognize that the rules of humanitarian law have been highly effective in diminishing the suffering of war and armed conflict. I also recognize that the rules are all of a piece and soldiers are socialized into respecting and upholding these norms as a single piece. Indeed, I do not advocate diminishing or replacing humanitarian law norms for those few cases of war or armed conflict that survive. By advocating that human rights be given greater sway, I mean only to indicate yet another reason to support contingent pacifism. If not for such pragmatic concerns, international law would favor contingent pacifism. Yet, wars will still be fought, and I agree that we are better off if humanitarian law is followed during those wars. Taking human rights seriously in the debates about the law applicable to non-peacetime situations should make people more positively inclined toward pacifism than we are at this moment in history. But once that is established then it is still important that soldiers be trained not to target civilians and not to engage in cruelty toward other soldiers. We should not think that waging a war that meets humanitarian law requirements is all that is required of us. Instead, in nearly all cases, we are required not to wage war at all. But if war does break out, we are not relieved of humanitarian requirements, even as these wars seem to be illegal. A fifth challenge is that if the law-of-war standard is that enemy soldiers are to be disabled and not necessarily killed this will expose our soldiers to various risks that they should not have to bear. Wounding or capturing enemy soldiers does not take them completely out of commission in terms of the continuing risk they pose to our soldiers. In most cases, forcing commanders not to kill enemy soldiers will leave our own soldiers exposed to risk of harm that will make engaging in war or armed conflict carry an unacceptable risk, which is also unrealistic to expect commanders to conform to. I have two responses to this challenge. First, I would argue that in some situations disabling rather than killing an enemy soldier presents additional risks to the soldiers on the other side. Yet, war and armed conflict cannot be conducted

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without serious risks to all who are concerned, and to all who are in the area where conflict occurs. So, the relevant question is not how to eliminate risk but how to make war and armed conflict something that can be conducted within reasonable risk limits. Since the St. Petersburg Declaration, it has been recognized that war could be conducted insofar as the law-of-war standard is that of disabling enemy soldiers. My second response is to say that it may indeed be very hard to adhere to this limit. But this is not a reason to think that this limit is the wrong one to have as the normative cornerstone of the law of war. As the contingent pacifist would maintain, war should only be considered legally justifiable if it can conform to reasonable limitations. If war and armed conflict cannot, at least at the moment, be carried out within these reasonable limits, then it is not legally justifiable to do so. And such a position is consistent with many legal documents on the law of war over the centuries, even if it is not a consensus doctrine. In this chapter I have addressed some emerging changes in the law-of-war requirements of international law. Such changes support, or at least make more plausible, a version of contingent pacifism. According to this approach, war as it is often understood today cannot be conducted in a legal way according to the new human rights approach, which is itself not all that different from the nineteenth-century understanding of the rules of war. In the next chapter I will provide more details about the current debates in international law that also support something very close to contingent pacifism concerning post-war considerations.

9

International law and post-war justice

In the previous two chapters, I explained how the international legal theory concerning the initiation and also the conduct of war could be seen as supporting something close to contingent pacifism. In the current chapter, I turn to the third branch of international theorizing about war (which corresponds to the third branch of the Just War tradition as well), the justice of war’s end. This relatively new branch of international legal theory has as its centerpiece a concern for reconciliation and reparations. Post-war justice is much less settled law than the justice of initiating or conducting war. Nonetheless, there is an emerging legal literature on this important subject, which dates at least to the work of Grotius. In this chapter, I will argue that the application of the principles of justice at the end of war can also be seen as supporting something close to contingent pacifism as well. I have argued elsewhere that the centerpiece of justice at war’s end is reconciliation. Reconciliation is the attempt to bring back together previously conflicting or competing parties so as to create a just and lasting peace among all members of previously warring groups. In legal theory, reconciliation is discussed most commonly in the transitional justice literature. I have argued that reconciliation is intimately connected to the rule of law as one of the main mechanisms for re-establishing peace where lawless conflict had previously dominated.1 In addition, reparations and rebuilding are often seen as a key to post-war justice and important dimensions in achieving reconciliation. In this chapter I will be especially interested in the achieving of a just peace through the virtue of not demanding all that is one’s due (meionexia), a concept developed by Hugo Grotius that seems especially apt in the context of reconciliation among people in previously war-torn societies. Post-war justice considerations tell in favor of contingent pacifism in that war is not just unless it is ended justly, and yet it is very difficult for this to happen. In fact many of the conditions of most wars, especially the kind of tactics and weaponry that is employed, make the two sides even more antagonistic than they were often before the war. This means that reconciliation, where both sides 1

See May, After War Ends.

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recognize the members of the other side as minimally deserving of respect, is made very difficult because of the waging of war. Indeed, the strategy that seems most readily able to achieve reconciliation at war’s end, where both sides come to accept not all that they deserve, is often completely anathema to two warring parties. Yet, if war cannot be ended justly then even though the war may have had a just cause, the overall assessment must be that the war was not just. In the first section of this chapter I examine some of the legal documents that have addressed post-war justice. In the second section, I will briefly discuss Grotius’ views of reconciliation in the context of the justice considerations after war ends, and I set out a Grotian account of the virtue of demanding not all that is one’s due, stressing how this idea relates to other similar values. In the third section I briefly address the question of whether post-war justice is binding international law. In the fourth section I discuss some of the differences between post-war justice and transitional justice. In the fifth section I return to some recent discussion of post-war justice in the law of peace settlements and truces. And in the last section, I set out the beginnings of a discussion of the post-war idea of principled compromise that informs the discussion of the chapter.

I

Reconciliation and reparations in international criminal law

Today, one of the main sources of law concerning post-war justice is the “Responsibility to Protect” doctrine. I will begin with a reference to that doctrine by looking at the way the International Criminal Court tried to institutionalize the Responsibility to Protect doctrine in the Lubanga case. It is common for reconciliation to be linked with reparations, often in a creative way, in contemporary international legal decisions. Here is a brief passage from the Lubanga case: “Reparations should secure, whenever possible, reconciliation between the convicted person, the victims of the crimes and the affected communities.”2 A concern for the victims is one of the most significant aspects of the Responsibility to Protect doctrine, and in this sense such a thing as reparations for victims is linked to reconciliation at the end of war in a way that had not been true in earlier models of transitional justice. The International Criminal Court also took the unusual step of addressing the indirect as well as the direct victims of major conflicts. Pursuant to Rule 85 of the Rules [of the International Criminal Court Statute], reparations may be granted to direct and indirect victims, including the family members of direct victims; . . . anyone who attempted to prevent the commission of one or more of 2

Situation in the Democratic Republic Republic of the Congo in the Case of the Prosecutor v. Thomas Lubanga Dyilo, International Criminal Court, Trial Chamber I, Judgment of March 14, 2012, para 193.

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the crimes under consideration; and those who suffered personal harm as a result of these offences, regardless of whether they participated in the trial proceedings. In order to determine whether a suggested “indirect victim” is to be included in the reparations scheme, the Court should determine whether there was a close personal relationship between the indirect and direct victim, for instance as exists between a child soldier and his or her parents. It is to be recognized that the concept of “family” may have many cultural variations, and the Court ought to have regard to the applicable social and familial structures. In this context, the Court should take into account the widely accepted presumption that an individual is succeeded by his/her spouse and children.3

In this sense the International Criminal Court began to address the problem of intergenerational difficulties in achieving reconciliation. In the Lubanga case, which concerned child soldiers and significant sexual violence, the International Criminal Court also began to address the difficulty of ascertaining who all of the victims were when ethnic divisions were so important in the identities of the victims and also in how the victims were identified or not by those of other ethnic groups. The limited scope of the charges brought by the prosecution against Mr. Lubanga limited the categories of victims who participated in this case. They come largely from the same ethnic group and they do not necessarily represent all those who suffered from crimes committed during the relevant conflict in Ituri. This situation could give rise to a risk of resentment on the part of other victims and the re-stigmatization of former child soldiers within their communities.

Inter-ethnic or intergenerational resentments are addressed forthrightly in this very important international court decision. In the Lubanga case, the International Criminal Court seemingly followed the Responsibility to Protect doctrine, which had addressed a wide range of reparations schemes that could be justified by the need for post-war reconciliation. Here is how reconciliation is characterized in the Responsibility to Protect: 5.4 The most successful reconciliation processes do not necessarily occur at high level political dialogue tables, or in judicial-style processes (though we well understand the positive role that truth and reconciliation commissions can play in certain post-conflict environments). True reconciliation is best generated by ground level reconstruction efforts, when former armed adversaries join hands in rebuilding their community or creating reasonable living and job conditions at new settlements. True and lasting reconciliation occurs with sustained daily efforts at repairing infrastructure, at rebuilding housing, at planting and harvesting, and cooperating in other productive activities. External 3

Ibid., paras. 194–95.

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support for reconciliation efforts must be conscious of the need to encourage this cooperation, and dynamically linked to joint development efforts between former adversaries.4

We can see that reconciliation is understood as involving reparations and repair in a daily effort, not a once-and-for-all resolution reached at a bargaining table. Another way to understand the Responsibility to Protect is in terms of the special needs that must be addressed after a conflict is over. In this respect one significant source of legal norms is the various statements made by the UN Secretary-General. Here is a description of one of the Secretary-General’s most significant recent reports. 5.5 The Secretary-General described very clearly the nature of and rationale for postconflict peace building in his 1998 report on The Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa: Societies which have emerged from conflict have special needs. To avoid a return to conflict while laying a solid foundation for development, emphasis must be placed on critical priorities such as encouraging reconciliation and demonstrating respect for human rights; fostering political inclusiveness and promoting national unity; ensuring the safe, smooth and early repatriation and resettlement of refugees and displaced persons; reintegrating ex-combatants and others into productive society; curtailing the availability of small arms; and mobilizing the domestic and international resources for reconstruction and economic recovery. Each priority is linked to every other, and success will require a concerted and coordinated effort on all fronts.5

In this statement, reparations and reconciliation after a war has ended are the focus, but many of the points covered are relevant to reconciliation in situations that did not involve armed conflict. Another source of law concerning justice at war’s end are the recent court cases concerning the role of victims, especially victims’ funds, in cases such as the International Criminal Court’s Lubanga case. There is a growing recognition in international human rights law that victims and groups of victims may apply for and receive reparations.” Pursuant to Rule 97(1) of the Rules, “the Court may award reparations on an individualized basis or, where it deems it appropriate, on a collective basis or both.” In consequence, and in accordance with Article 21(3) of the Statute and Rule 85 of the Rules, “reparations may be awarded to: a) individual victims; or b) groups of victims, if in either case they suffered personal harm.6

It is especially important to note that collective reparations are addressed in this International Criminal Court judgment. And the reason that is offered is also very important for understanding legal sources of collective reparations. 4

5

International Development Research Centre, Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, Ottawa: International Development Research Centre, December 2001. 6 Situation in the Democratic Republic Republic of the Congo, para. 217. Ibid.

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As we saw in Chapter 5, collective responsibility issues are especially important for some of the newest arguments in favor of contingent pacifism. Here is how the International Criminal Court has most recently discussed collective responsibility in the post-war domain. Given the uncertainty as to the number of victims of the crimes in this case – save that a considerable number of people were affected – and the limited number of individuals who have applied for reparations, the Court should ensure there is a collective approach that ensures reparations reach those victims who are currently unidentified.7

It is also interesting to note that the International Criminal Court wants to address even victims who are not currently identified, and seems intent on doing so in a manner that is consistent with collective responsibility. Indeed, the International Criminal Court has indicated that it will not be dissuaded from pursuing collective reparations schemes because individual victims are evident. Individual and collective reparations are not mutually exclusive, and they may be awarded concurrently. Furthermore, individual reparations should be awarded in a way that avoids creating tensions and divisions within the relevant communities. When collective reparations are awarded, these should address the harm the victims suffered on an individual and collective basis. The Court should consider providing medical services (including psychiatric and psychological care) along with assistance as regards general rehabilitation, housing, education and training.8

In addition here we see that the International Criminal Court recognizes how individuals can be harmed as members of groups. And there is also a recent move within the ICC to address not just the guilt of the perpetrators of harm during conflicts, but also other moral emotions such as shame. Reparations may include measures to address the shame felt by some former child soldiers, and to prevent any future victimization, particularly when they endured sexual violence, torture and inhumane and degrading treatment following their recruitment. As canvassed above, the Court’s reparations strategy should, in part, be directed at preventing future conflicts and raising awareness that the effective reintegration of the children requires eradicating the victimization, discrimination and stigmatization of young people in these circumstances.9

Shame-inducing reparations schemes here seem to be especially important when the harm is one of stigmatization of an entire ethnic group in a given society. The International Criminal Court also has addressed the timeliness and the proportionality of reparations of harms. 7

Ibid., para. 219.

8

Ibid., paras. 220–21.

9

Ibid., para. 240.

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Victims should receive appropriate, adequate and prompt reparations. The reparations should, in all circumstances, be awarded on a non-discriminatory basis, and they need to be formulated and applied in a gender-inclusive manner. The awards ought to be proportionate to the harm, injury, loss and damage as established by the Court. The measures will depend on the particular context of this case and circumstances of the victims, and they should accord with the overarching objectives of reparations, as set out in this decision.10

As we will see in subsequent sections of this chapter, the recent jurisprudence from the International Criminal Court on reconciliation and reparations seemingly moves the court toward a position that could be seen as close to contingent pacifism, insofar as reconciliation and reparations are hard to work out in most cases of war and armed conflict. But before looking more at the recent literature in international law, let us go back to the beginning of the seventeenth century where Grotius began modern thinking about international law.

II

Grotius, reconciliation, and post-war justice

In the early modern period, Grotius is the great defender of the virtue of demanding less than is one’s due as the conceptual underpinning of post-war justice. Grotius distinguishes an external and an internal “interpretation of the term ‘to be permissible.’”11 External obligations are those imposed by explicit law; whereas internal obligations are “moral” obligations.12 It seems to me that the internal obligations that Grotius here addresses, which he also calls considerations of humanity, are similar to what Hobbes, just a few years later, would call judgments “in fora interna” or judgments according to conscience.13 Demanding less than is one’s due is appropriately seen here by Grotius as part of the internal obligations of conscience. And Grotius made it fairly explicit that demanding less than is one’s due connects to law at the end of war when he then addressed reconciliation, as well as reparations. Even if one side fights a just war, one may not be entitled to the spoils of war, argued Grotius. Retribution as a matter of internal justice or obligation is something that may be called for even on the part of the just and victorious nation. And the reason for this is that justice can sometimes be a matter of not demanding what one has otherwise a (external) right to demand. Indeed, Grotius is one of the first to recognize that things that are permissible are of two kinds – a narrow permissibility in terms of what strict external right demands as a matter of law, and a wider notion that takes into account humanitarian considerations of the sort that post-war justice involves. 10 12

11 Grotius, De Jure Belli ac Pacis, p. 717. Ibid., paras. 242–43. 13 See Hobbes, Leviathan (1651), chap. 15. Ibid., p. 720.

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For Grotius, justice is not based in weakness but is grounded in what he had earlier described as “the common good.”14 In Grotius’ view, justice is seen as a matter of moderation, where there are limits to what can be done “even in a lawful war.”15 Grotius built on the ancient Greek conceptions that saw justice as a form of moderation where justice was best understood as a context-dependent term. And in this respect justice should not be seen as a strict notion that does not take account of the suffering that may result from demands that were permissible in one sense but not permissible in terms of values like compassion. Indeed, the idea that a widened notion of justice should encompass compassion is a central idea in what historically has been the best understanding of justice in a post-war context. As I said, one of the most important conditions of post-war justice is reconciliation. After war or armed conflict is over, a key consideration of postwar justice is that the parties come to a respectful peace where mutual respect for rights is the hallmark. In the sixteenth century, Francisco Vitoria was concerned with the effects of punishing those who have done wrong during war, and argued that punishment must be mitigated by “moderation and Christian humility” so as best to achieve a secure and just peace.16 Reconciliation was also recognized in the seventeenth century by Grotius, as when he discusses the conditions for which clemency rather than punishment should be meted out.17 Today, reconciliation is again taking center stage in the debates about justice at war’s end, as well as in the related legal debates about the Responsibility to Protect and transitional justice, as we have just seen in the previous section.18 Another condition of post-war justice is rebuilding. Rebuilding is the condition that calls upon all those who participated in devastation during war to rebuild as a means to achieve a just peace. Grotius says that “all the soldiers that have participated in some common act, as the burning of a city, are responsible for the total damage.”19 One of the most difficult issues in the post-war justice debates over the centuries is whether both the just and unjust sides of a war should help to rebuild. Vitoria addressed this issue straightforwardly when he said that “injured states can obtain satisfaction” even if they are those who have done wrong because “fault is to be laid at the door of their princes,” not among those who acted in good faith in following the dictates of these princes.20 While some called for the wrongful vanquished State to be severely treated, Vitoria 14 16 17 18

19 20

15 Ibid., p. 722. Grotius, De Jure Belli ac Pacis, p. 36. Vitoria, De Indis et de Ivre Belli Relectiones, sect. 60, p. 187. Grotius, De Jure Belli ac Pacis, p. 725. See Colleen Murphy, A Moral Theory of Political Reconciliation (Cambridge University Press, 2010). Also see Elizabeth Edenberg and Larry May, “Introduction,” in May and Edenberg (eds.), Jus Post Bellum and Transitional Justice (New York: Cambridge University Press, 2013). Grotius, De Jure Belli ac Pacis, p. 719. Vitoria, De Indis et de Ivre Belli Relectiones, sect. 60, p. 187.

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and others were concerned that rebuilding was necessary for a just and lasting peace. This was also true of how the Allies responded to winning World War II, namely by funding the rebuilding of Axis cities in Germany and Japan. And another condition of post-war justice is reparations. Suárez says that “in order that reparation of the losses suffered should be made to the injured party” war may be declared.21 But reparations are more typically discussed as due after a war is over. Indeed, Grotius says that “there are certain duties which must be performed toward those from whom you have received an injury.”22 This remark is mainly addressed at prohibiting cruelty but it can easily also be seen as a way to view reparations, where even the just victor may have duties of reparation to the unjust vanquished.23 Grotius proposes the virtue of not demanding all that is one’s due, as a way to understand how to see reparations from the standpoint of the just victors. Reparations are crucial for re-establishing trust which is itself necessary for reconciliation among the parties after war’s end. Demanding less than is one’s due is a virtue and does not simply call for compromise or settling for less. Instead, to display this virtue means that in some cases people will not demand what they are due as a way to gain a more secure and lasting peace. Compromise is problematic when it involves one or both parties having to sacrifice what is morally valuable to their integrity. On the assumption that all people strive for a just and lasting peace, there is no loss of integrity involved even when the parties decide to give up what is morally important to them. In the sense that all parties will equally get what they strongly desire, a just and lasting peace, there is a sense in which demanding less than is one’s due is a post-war principle that is closely related to justice understood in distributive terms.24 In post-apartheid South Africa, for example, criminal trials and accompanying punishments were not pursued even though the victims had the right to demand them as a matter of strict retributive justice. But in not following strict justice, the Truth and Reconciliation Commission did not let the perpetrators of apartheid off the hook since there were still some penalties, as was also true in Rwanda with the Gacaca proceedings. The idea was to establish a return to the rule of law and mutual respect within a war-torn society by indicating that the victors would not demand all that they had a right to. Here the virtue of justice as demanding less than is one’s due is supported by some of the same factors that support the deontological underpinnings of retributive justice. 21 23 24

22 Grotius, De Jure Belli ac Pacis, p. 722. Suárez, “On War,” sect. IV.4, p. 817. Se the discussion in Section I of this chapter about the Lubanga case’s treatment of the victims’ fund. See Martin Benjamin, Splitting the Difference (Lawrence: University of Kansas Press, 1990). Also see Avishai Margalit, On Compromise and Rotten Compromises (Princeton University Press, 2010); and Amy Gutman and Dennis Thompson, The Spirit of Compromise (Princeton University Press, 2012).

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In addition, when the Allies decided to help rebuild the Axis countries after the Second World War, this was not so much a compensatory payment as it was an investment in re-establishing peaceful partners and fellow democratic States. By not demanding what the victors had a right to demand, victors show a respect for those individuals who are part of the vanquished side but who are often not complicit in the aggression of their political and military leaders. Showing respect for these vanquished people, but not necessarily for their leaders, can be crucial for a return to the rule of law. In such a situation, the people are motivated to demand of their leaders a change in how the people’s rights are viewed by these leaders. Providing compensation to deserving vanquished victims is hard to do unless those who are not responsible for the victims’ harms display the virtue of not demanding all that is one’s due by contributing to the payment of the compensation. After war ends the vanquished government can often not provide such compensation. In this sense reparations and restitution are accomplished, as is sometimes true in auto accident cases in the US and elsewhere, as a kind of no fault plan. Those who are most able to pay are asked to pay compensation, even though they have no strict duty to do so.25 The justice of post-war situations is secured not through giving to people what is their due in the short run, but in securing what is the good for societies that seek to return to a lasting peace. Again, we can see this in operation historically in the way the US and its allies paid for the rebuilding of Germany and Japan after the Second World War. One might wonder whether demanding less than is one’s due might be better understood if it is not thought to be a form of justice, especially since justice is strongly allied with the law. Perhaps we should associate demanding less than is one’s due with charity rather than justice. In this view, the concept of justice is best left to the strict considerations of public right as explicit law. What one should do in terms of one’s conscience seems to be a different matter than what one does as a matter of the kind of public justice associated with legality. Indeed, when demanding less than is one’s due is said to be the cornerstone of post-war justice, it then seems as if we are not really talking of legal justice but of those considerations of private conscience that are best distinguished from public justice. To add a large component of what is normally seen as charity into a conception of justice seems merely to muddy the waters in understanding the nature of justice. My response to this important criticism is again to suggest that humility, if not charity, has played a role in the way justice is understood since the Middle Ages. In part, this is what seeing justice as a form of Aristotelian moderation is 25

See Yael Ronen, “Avoid or Compensate? Liability for Incidental Injury to Civilians Inflicted During Armed Conflict,” Vanderbilt Journal of Transnational Law, 42 (2009), 181–225, who defends a standard of strict liability for compensating victims of armed conflicts.

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all about. For justice to be characterized as moderation, the demands of justice must not be seen as going beyond what is reasonable to demand of people, given the disparate situations people find themselves in. And seeing justice as connected to humility is also a way to make sure that justice is not associated with demanding more than is one’s due, either. Sometimes it seems as though the demands of justice are those that are the loudest – and in this way justice secures its place as the value of courtroom proceedings where prosecutor and defense counsel make conflicting and strident demands. But, in my view, the virtue of justice is not best seen as adversarial in all settings. Yes, the victims need to be able to demand what is rightly theirs, but they must sometimes be counseled to moderate these rightful demands in light of the circumstances.

III

Is post-war justice binding law?

If the virtue of demanding less than is one’s due is not a matter of strict justice, but of humility and moderation, are people bound to follow this form of justice, and why discuss this concept at all in a section on international law? The answer is that when justice is seen as a virtue it is something best understood from a first rather than a third person point of view.26 In this respect, Grotius distinguished between the law of nations and the law of nature,27 as did other seventeenth-century philosophers such as Hobbes.28 As I said earlier, Hobbes drew a distinction between what is binding in conscience (in foro interno), and what is binding in society as a matter of public conscience (in foro externo). For Hobbes, natural law binds in private conscience whereas civil law binds in public conscience. If one violates the laws of nature one commits a sin not a crime. Only when the laws of nature have been given force and sanction by a sovereign does a violation result in a crime and a call for punishment. I say much more about this Hobbesian view in Chapter 11. Grotius separates the bindingness of morality, of what he calls the law of nature, from the bindingness of the law of nations. To say that something is only binding in one’s conscience, at least in the seenteenth century when Grotius wrote, was not to imply that the bindingness was weak or inconsequential. What the law of nature dictates is “forbidden” according to Grotius.29 The law of nature is grounded in “the common sense of mankind,”30 where all or almost all nations would affirm them. And Grotius adds that the law of nature is “written in their hearts, their conscience.”31 In this sense, post-war justice, as grounded in the virtue of demanding less than is one’s due, can be binding even if it is not 26 27 28 30

I thank Saba Bazargan for prodding me on this point. See May and McGill (eds.), Grotius and Law, especially the essays in the final section. 29 Grotius, De Jure Belli Ac Pacis, p. 39. See May, Limiting Leviathan, esp. chap. 8. 31 Ibid., p. 47. Ibid., p. 42.

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a matter of strict justice. Indeed, not all of justice is binding in the same way, since not all of what is just is written into anything like black-letter law. Article 38 of the Statute of the International Court of Justice lists the sources of international law that the Justices of the International Court of Justice may appeal to. In addition to statutes, custom, general principles, and the writings of learned scholars, a similar kind of gap-filler to that of the Martens Clause is also listed. “This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.” Here equity (aequo) and conscience (bono)32 are explicitly mentioned in a very similar way to the Martens Clause’s use of the concept of “the requirements of public conscience,” as extra-statutory ways of resolving international legal disputes. Note that this particular formulation was one of the ways that Justice Story characterized the broad conception of equity. It is my view though that the better way to understand the Martens Clause is in terms of the middle version of equity that I will argue that Hobbes also seemed to embrace. One of the leading international jurists, Theodor Meron, has stated that “human rights norms have infiltrated the law of war to a considerable extent.”33 He traces this influence back into the natural law tradition, but its clearest modern influence, he says, is in the Martens Clause of the Hague Conventions. Meron says that the Martens Clause epitomizes the humanizing aspect of the law of war.34 Similarly, the Martens Clause is often cited today by legal theorists who support the intrusion of human rights norms into international humanitarian law. But such intrusion of human rights norms is restricted to those that are most significant, especially considerations of the right to life and liberty. In particular, the reference to “the laws of humanity and the requirements of public conscience” are seen as principles of general international law that, in the words of a member of the International Court of Justice, may change as “the outlook and tolerance level of the international community” changes,35 just as one might expect of matters of public conscience. The tolerance for war at the moment is at a low ebb, and the public conscience of international society is highly critical of using the legal resources of the State to launch new wars. Today those who refuse to fight should be seen as representing public conscience as much as their own private consciences. Indeed, my exposition of Hobbes’s writings will show how these categories set important limits on State action, especially actions that take the young men and women of that State into war against their conscientious judgments. 32 33 35

This term literally means “good,” but the implication is “good or right judgment,” and hence is often interpreted to refer to conscience. 34 Ibid., p. 5. Meron, Humanization of International Law, p. 6. Ibid., p. 20 quoting the ICJ’s Advisory Opinion on Nuclear Weapons, dissenting opinion of Shahabuddeen.

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Public conscience is not merely public opinion. Public conscience is ultimately a matter of morality, but not in its full formulation. The dictates of public conscience are specific moral requirements that are reasonable restraints on States and individuals. These dictates are not law properly so called, but sources to draw on for the creation of law, or to correct unfair law. In this sense, the dictates of public conscience are not properly binding in private conscience since there is no world sovereign to enforce them. Even though the dictates of public conscience are not proper law, the dictates of public conscience are authoritative insofar as they are deemed to be reasonable restraints on behavior in the international domain. Notice that the best way to translate the title of Grotius’ book, De Jure Belli Ac Pacis, is “On the Law of War and Peace.” For our purposes it is of course worth comment that Grotius believed there were laws not only of war but also of peace and justice at the end of war. Of course, the term “jus” is ambiguous in Latin and can be translated in English not only as “law” but also as “rights,” where perhaps “rules” is even better in this context. For Grotius there were binding rules of peace just as there were binding rules of war. Insofar as Martens would have extended the laws of war also to include the immediate aftermath of war, his “laws of humanity and requirements of public conscience” would also concern post-war justice. Today the laws of war are fairly well settled, which is not true of the laws of peace at the end of war. In this sense post-war justice is perhaps best seen as a normative principle. My point is only that the question of whether postwar justice is all merely normative guidance and not at all black-letter law is a more complex question than one might first imagine, especially from a Grotian perspective. Yet, it is true that there is not as much treaty law or clear-cut custom that pertains to the justice of post-war settings as compared to the justice of the initiation or conduct of war.

IV

Transitional justice and post-war justice

Transitional justice concerns the moral and legal considerations that apply to situations where a new, normally more democratic, regime is being formed after mass atrocity or oppression. Post-war justice concerns the moral and legal considerations that apply to situations where a war or armed conflict has come to an end. In both cases justice pertains to situations where peace is being established. It is not merely peace that is at issue, but a just peace, where mutual respect and the rule of law are key considerations. There is overlap between principles of post-war justice and some of the main principles of transitional justice, as well as overlap concerning the conception of justice that is at play. The main principles of transitional justice concern: the

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rule of law, democracy, truth, forgiveness, and punishment. Often these principles work in tandem to provide a grounding for transitional justice. Transitional justice differs from post-war justice in that the focus of transitional justice is on the processes that lead to a less repressive, and more democratic, regime; whereas, post-war justice is focused on achieving an end to war or conflict and the establishing of a just peace. So the goals are different, even if they somewhat overlap. There is significant overlap between transitional justice and post-war justice since the kind of peace sought in post-war justice is a just peace, and that almost always means one that is less oppressive than what had existed before. Perhaps most importantly, the wars that are fought today are much more likely to be civil wars than interstate wars, and the atrocities from which transition is sought are much more likely to be accompanied by civil war than not. This means that the traditional ways of viewing the rules of war, especially concerning the end of war, will have to be rethought. Even if we think of the problems in these fields as involving morality rather than legality, very little is settled either. Yet, the beginnings of a consensus are emerging.36 The Secretary-General of the United Nations released a report on the rule of law and transitional justice in 2004 that, among other things, defined transitional justice: The notion of “transitional justice” discussed in the present report comprises the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses in order to ensure accountability, serve justice, and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof.37

It is noteworthy that this report on transitional justice concerned situations of conflict as well as post-conflict, thus again calling attention to the overlap with post-war justice, which also concerns post-conflict situations. In the SecretaryGeneral’s Report it is also interesting to note that reconciliation, reparations, and prosecutions (as a matter of retribution) are mentioned as part of transitional justice. These are often listed as principles of post-war justice. 36

37

See May, After War Ends; Larry May and Andrew Forcehimes (eds.), Morality, Jus Post Bellum, and International Law (New York: Cambridge University Press, 2012); Carsten Stahn and Jann Kleffner (eds.), Jus Post Bellum: Towards a Law of Transition from Conflict to Peace (The Hague: TMC Asser Press, 2008); and Eric Patterson (ed.), Ethics Beyond War’s End (Washington, DC: Georgetown University Press, 2012). United Nations Security Council Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, August 23, 2004. A follow-up report was issued seven year’s later, United Nations Security Council Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, October 12, 2011.

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Today, the transitional justice literature and post-war justice discussions are closely linked with debates about the Responsibility to Protect, mainly on its third prong: the responsibility to rebuild, especially to rebuild the rule of law. But there is a difference, perhaps a major one, in that there is a more pronounced favoring of peace over justice in the post-war justice literature than in the transitional justice literature. Transitional justice defenders have sometimes countenanced, and even demanded, military intervention to force a regime change toward a more democratic order. The legal literature on reconciliation has had many themes in common even as there have often been different approaches taken by transitional justice supporters and supporters of post-war justice approaches. The differences are most apparent concerning the attitudes taken toward the use of military intervention to solve international problems. But concerning reconciliation more generally both legal camps have embraced the importance of certain kinds of compromises grounded in mutual respect. And this has often meant that the side that is in the right still is willing to aid in compensating those who have been aggrieved by those who were in the wrong. In some of my other writings, I have tried to capture the moral grounds for counseling that reparations should be spread between victors and vanquished, where even those who are the just vanquished feel that they should help with reparations costs. This is an idea that one can find instantiated recently in cases of post-war justice and in cases of transitional justice. The idea is that reparations often are a major impediment to reconciliation. Without reconciliation it is more likely that the wars or armed conflict will restart. So, for the sake of a lasting peace, even the just victors should be counseled to help rebuild or pay reparations to the vanquished. It should also be recognized that the fact that the vanquished State or non-State actor is on the unjust side of a war, does not necessarily mean that the vanquished citizenry was in the wrong, but often only that the leadership of the State was in the wrong. It thus seems to be unfair as well as unwise to penalize the citizenry for what their leaders have done. As I have said at various points, we have two examples that can tell us quite a lot about how best to understand post-war justice and transitional justice: Japan and Germany at the end of World War II. And we have significant recent examples of attempts to establish criminal trials and also to deal with victim reparations – namely, the International Criminal Court, which is in the background of most of the contemporary debates about both post-war justice and transitional justice. In addition, there are the ongoing attempts to find a way to end the US and NATO’s long war in Afghanistan – unfortunately this war, like the one in Iraq, was begun without exit strategies – but surely this is what post-war justice principles would have called for. Peace and justice do not come easily, and there will continue to be many examples where serious discussion

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of justice after war or mass atrocity may aid policy-makers and citizens in understanding how a just peace can be secured. V

Peace settlements and treaties

The type of reconciliation I discussed in the previous sections can serve as a model for such post-war reconciliations as those involved in the establishment of peace settlements and treaties. I will explore these examples with reference to some recent writing in international legal theory. There has been an explosion of writing about justice at the end of war in international law books and journals. And one thing that is clear is that a spirit of co-operation is key. Peace agreements are typically reached as a result of negotiations and bargains that often themselves result in neither party getting all they think they deserve, but where both parties get enough so that continuing the war is no longer preferable. Indeed, if there is no back-and-forth involved in a peace settlement, the one-sided nature of the agreement, if it can be called an agreement, is unlikely to last. Or if the peace settlement does last, because one of the parties cannot rebuild, there will remain a significant likelihood of insurgency or instability in the region. In cases where there is a mutual decision to stop fighting, there is still a need for negotiation that is done in good faith by both sides. Indeed, it is commonly recognized that a quick-fix ending to a war or armed conflict, where the parties are still unhappy, will normally only result in a temporary ceasefire, at best.38 Both parties must be willing to sacrifice significantly in most cases and to receive substantial gains for the peace treaty to be worth the paper it is signed on. The point here is a general one about all forms of treaties, which are really just elaborate contracts. Unless there is a true meeting of the minds it is unclear whether there is a binding agreement between the parties. For there to be reciprocal commitment that generates mutual obligations and rights, the parties must have good faith in one another’s promises. In this sense the compromises that are struck and the negotiation that reaches these compromises must be principled in the sense that the parties are indeed committed to satisfying the terms of the agreement. Without this feature of agreements, it is unclear what the basis of the normative pull of these contracts is. As I pointed out earlier, Grotius is often considered the early modern philosopher who did the most to highlight the importance of justice considerations at the end of war. I argued that Grotius also understood how important it was 38

See Jennifer Easterday, “Peace Agreements as a Framework for Jus Post Bellum,” in Carsten Stahn, Jennifer Easterday, and Jens Iverson, Jus Post Bellum: Mapping the Normative Foundations (Oxford University Press, 2014), pp. 379–415.

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that the parties do not demand all that is their due in order to achieve a lasting peace. In the terms of peace settlements and treaties, Grotius stressed that “good faith should be preserved” in order to end wars in a way that would “preserve peace.”39 And Grotius points out that truces are not peace agreements since the war will continue as soon as the lapse in fighting is over. Peace settlements must involve a renouncing of war into the future, and this is definitely not what is found in truces. And truces only make sense, Grotius says, when the proposal of peace has been refused.40 From a Grotian perspective, the parties must recognize each other as equals at least to the extent that they will see the promises of the other as based in good faith. Hersch Lauterpacht refers to this as the Grotian tradition,41 and the term has caught on among some international legal scholars.42 For Grotius, international law was a seamless order that applied in times of peace but also in times of war, and was especially binding on all States, but also on individuals. Peace settlements were binding if they were entered into equally by each party, and the rule of law was what preserved the peace in such cases. And from a Grotian perspective the resolution of war was a matter of law not a matter of politics. In this respect, the justice after war’s end is meant to be based in legal principles. I have been suggesting that the legal principles are similar to those employed in contracts and other legal agreements. While the kind of negotiation characteristic of peace settlement talks looks very much like other forms of political deliberation, from a Grotian perspective the process and result are governed by legal principles that are a part of the larger rule-of-law constraints that govern other areas of life under law. As indicated above, I, like Grotius, am employing the idea of law in a broad sense to include activities that are governed by explicit rules and principles that themselves have been arrived at by well-known processes. If at war’s end such processes are not or cannot be followed, then this brings into question the justice of the war from its inception. And the idea of contingent pacifism gets its foot in the door if it turns out that the ending of war is unjust in nearly every case. Wars have not ended in a way that passes muster according to the emerging law of post-war justice. As Grotius pointed out, the parties have to come to the negotiating table seeing each other as roughly equal and where the interests of the other are taken seriously. It is then in a spirit of compromise from positions of mutual respect and regard for the good will of the other that a peace settlement is agreed to and formalized into a treaty. The prudential point is that peace 39 41 42

40 Ibid., pp. 834–35. Grotius, De Jure Belli Ac Pacis, p. 860. Hersch Lauterpacht, “The Grotian Tradition in International Law,” British Yearbook of International Law, 23 (1946), 1–46, repr. in May and McGill (eds.), Grotius and Law, pp. 469–521. See Jens Iverson, “The Foundations of Transnational Justice and Jus Post Bellum,” in Stahn, Easterday, and Iverson, Jus Post Bellum, pp. 80–101.

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will not likely last otherwise – the legal and moral point is that the peace will not be worth preserving. Here again we come to the idea of a lasting peace that is also a just peace. Such a just and lasting peace is crucial for war to be said to end justly. And the contingent pacifist will argue that not only do wars rarely have a clear end, but it is even rarer that wars end in a just way. Contingent pacifism is supported by various legal regimes that have, for centuries, regulated war and armed conflict. This chapter and the previous two chapters have attempted to show that various aspects of international law support something like contingent pacifism. In the current chapter, I have analyzed various aspects of the emerging law concerning post-war justice. And I have suggested that there are principles that undergird this regime of justice that make it hard for a war to be said to end justly. Here, in the current chapter, I have allowed the legal considerations to merge with moral considerations, as is in keeping with the model of the Martens Clause that was discussed earlier. In general, my view is that principled compromise is clearly necessary for a binding peace treaty, and that justice in this domain is best seen as each party not demanding all that is their due. In the next section I will explain more about what is involved, and what is not involved, in the idea of a principled compromise. Not demanding as much as one is owed is crucial for achieving a lasting peace that is seen by both sides as preferable to continuing war and armed conflict. VI

Principled compromises and mutual respect

Throughout this chapter I have used the general case of peace settlements, to illustrate how reconciliation may operate to solve problems of justice. Mutual respect is one of the key components, as is a willingness to try new avenues of approach to old problems that face the society. One of these relatively new ideas is something I have been exploring in this book, namely, contingent pacifism.43 Another is the idea that just victors pay rebuilding and reparations costs. These ideas are controversial, to say the least, but they represent some of the best hope for reconciliation among groups that are involved in especially intransigent struggles. In this final section I will say more about these related issues of mutual respect and principled compromise. Principled compromise, as we have been exploring that feature of it under the label of not demanding all that is one’s due, is often the key to solving highly troubling social problems, such as are involved in difficult peace settlements. 43

See Larry May “Contingent Pacifism and the Moral Risks of Participating in War,” Public Affairs Quarterly, 25/2 (April 2011), 95–111; and Larry May, “Contingent Pacifism and Selective Refusal,” Journal of Social Philosophy, 43/1 (Spring 2012), 1–18.

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Compromises are principled in that neither party is required to give up something that is highly valuable unless there is something equally valuable, for that party, which is achieved to compensate for what is lost. Typically compromises are only principled if each party agrees to the terms of the compromise. But it may sometimes be sufficient to show that both parties would have accepted the compromise if they were being reasonable. Of course quite a lot will turn on what is deemed reasonable and who gets to judge it. I have in mind a fairly minimalist understanding of both rationality and reasonableness which is mainly supposed to rule out positions that a party currently takes that are demonstrably inconsistent with other positions that this party has held in the immediate past and that are at odds with the core beliefs of that party. Minimal rationality is only meant to rule out belief and valuing that is transient or highly likely to be merely influenced by the moment. The idea is to place a limit on what a party can claim as a matter of his or her principles. A person’s principles are not merely transient beliefs or values but ones that go to the core of a person’s integrity. Compromises should not force a party to violate his or her core beliefs or values, but a compromise can still be principled if it violates merely transient beliefs or values of a given party. For compromises to manifest mutual respect for all parties, minimal reasonableness holds that those parties should not normally be forced by the compromise to violate what is integral to their moral center of gravity, their integrity. In addition, the compromises that are struck must not be merely based on convenience but the compromises themselves must be grounded in morality in so far as it is aimed at the good of all parties. And here the good of the parties refers to the care we owe for one another as fellow humans who deserve to be respected and not used or manipulated for political ends or social convenience. I have proposed a type of compromise that not demanding all that is one’s due involves because achieving reconciliation of parties often requires that one or preferably both parties must compromise to allow for the demands of the past, often justified though they are, to be not satisfied. The most serious of these demands will concern a demand for retribution or for compensation that cannot be satisfied if the parties are to reconcile sufficiently for a lasting peace to be established. Failure to satisfy such demands can be justified as long as the parties either agree or cannot reasonably disagree. In the debates about peace treaties and settlements, as well as other debates concerning post-war or atrocities, reconciliation will not be achieved unless both parties recognize and respect each other. The key is to avoid what some have called rotten compromises, where one or both parties either end up worse off or end up in a position they would never have agreed to.44 Neville Chamberlain’s agreement with Hitler is often seen as a rotten compromise 44

See Margalit, On Compromise.

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in that Chamberlain was manipulated to accept an unreasonable demand that almost resulted in the subjugation of Britain to Nazi Germany, contrary to all that Chamberlain most firmly believed in. Reconciliation does not always require the kind of compromise that not demanding all that is one’s due involves, but it often does. The reason for this is that parties often are at loggerheads because there are legitimate demands that each can make of the other and yet there seems no way that all of these demands can be met at the moment without undermining long-term chances for peace. And yet without reconciliation the prospects are that neither party will be able to achieve a life of optimal satisfaction and fulfillment. This problem is as old as recorded history, and is a well-used trope of the ancient Greek tragedies. Not only are there recent circumstances that give rise to demands but even more difficult are old demands that when unmet fester and poison the air and make lasting peace nearly impossible. In addition, even after peaceful relations have been achieved, it is often still difficult to maintain the peace in light of demands that are still on the table and have not been dealt with. And here is where the kind of compromise where a party agrees not to demand all that is clearly his or her due can be so important. Indeed, it is hard to think of any single strategy that is more important for attaining reconciliation and peace among parties. And yet, such considerations move us toward contingent pacifism because achieving a just peace settlement of the sort I have described is so hard to achieve at war’s end. While a relatively new set of legal and moral considerations, post-war justice needs to be more fully explored. And when this occurs, another set of factors in favor of contingent pacifism will be seen.

Part IV

Conscience and Conscientious Refusal

10

Conscience, integrity, and morality

In the next three chapters I will provide an argument for seeing close links between contingent pacifism and selective conscientious objection. Those who are driven by conscience often recoil at the idea of participating in a particular war that is seen to be unjust, but are not opposed to all wars. While conscientious objection can be supported by Just War theory, it seems to me to be somewhat better supported by contingent pacifism. I will argue that the judgments of conscience should have pride of place among one’s judgments, even as I disagree with various theorists who try to assimilate the dictates of conscience to objective morality. The chapter has the following form. I will first set out an account of the experience of conscience, relying especially on philosophers who have tried to explain the core idea that a person is motivated to follow this “inner voice” of self-examination. In the second section I will examine the case of Huckleberry Finn, as described by Mark Twain and as analyzed by Jonathan Bennett. Huck’s case illustrates the problem that conscience can be grounded in bad upbringing. In the third section, I turn to Socrates’ seemingly first account of the phenomenon of conscience in the Platonic dialogue, the Apology. Socrates links conscience with a god or spirit but even so there is still the distinct possibility that conscience could be a bad rather than a good spirit. In the fourth section I discuss the practical problem of trying to discern whether one’s own conscience is to be trusted as having originated in good as opposed to bad upbringing. While reason and sympathy can restrict or otherwise influence conscience, one first has to discern that one’s conscience is in need of such aid. Yet, the risk to the integrity and harmony of the self of not following conscience is such that in most cases one should follow one’s conscience, and the State should allow for this – as I will argue in more detail in Chapter 11. In the final section of the current chapter I respond to some objections to my views. I

Conscientious judgments

Immanuel Kant provided a good beginning at understanding the value of following one’s conscience when he said: 197

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Does not a righteous man hold up his head thanks to the consciousness that he has honored and preserved humanity in his own person and its dignity, so that he does not have to shame himself in his own eyes or have reason to fear the inner scrutiny of self examination? This comfort is not happiness . . . But he lives and cannot tolerate seeing himself unworthy of life.1

Kant gives voice to one of the salient facts about conscience – that for many people thwarting conscience brings a person to feel shame or guilt and not to be able to tolerate seeing himself or herself in this dishonored position. In this way conscience places barriers in our way that move us to act honorably so as to live up to standards that we feel we cannot but live up to.2 When some people consider serving in the military, they fear experiencing the shame or dishonor of failing to do what they conscientiously judge they should do. Such a reaction normally only occurs when there is a matter of importance that is the subject of such a conscientious judgment. Consciencebased judgment can be of matters great and small, and conscience can also be false in the sense that it is influenced by the prejudiced opinions of those who brought one up, or by too great a concern for the egoistic interests of the self. But there is a range of conscientious judgment that is of the utmost importance for the inner harmony of the self and that has been well recognized as grounding exemptions from military service in many Western democracies for more than a century. Conscience, like virtue, is a capacity that leads to socially beneficial consequences in those who develop it. As Philippa Foot has said, virtues are “corrective, each one standing at a point at which there is some temptation to be resisted or deficiency of motivation to be made good.”3 Similarly, conscience places barriers in one’s path that can contribute to the avoidance of wrongdoing. Yet conscience, unlike the virtues, seems to be grounded in a concern for the self, for the self’s inner harmony, rather than directed toward the proper end of human action. While it is quite likely that Foot is right in claiming that there is no general virtue of self-love, conscience does seem to be different from virtue in that it proceeds from and remains closely allied with a certain kind of concern for the self. Conscience begins as a concern for the self, not necessarily a psychological concern so much as a fundamental concern for the self’s integrity, which nonetheless leads to restraints on selfishness.4 1 2 3 4

Immanuel Kant, The Critique of Practical Reason, trans. L. W. Beck (Indianapolis, IN: BobbsMerrill, 1956), pp. 90–91. This section draws on, and expands, a discussion from my paper, “On Conscience,” American Philosophical Quarterly, 20/1 (January 1983), 57–67. Philippa Foot, “Virtues and Vices,” in Virtues & Vices and Other Essays in Moral Philosophy (Berkeley: University of California Press, 1978), p. 8. I am grateful to Saba Bazargan for discussion of this point.

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Peter Winch came to the following understanding of conscience. “To will the good is to see a limit beyond which one cannot (or will not, I do not think it matters which one says here) go. There are certain actions which such a man could not (would not) perform, whatever the considerations in their favor.”5 In this view, the main function of conscience is the setting of barriers, such as the barrier against doing harm to another person. One’s recognition of wrongness is experienced as a “voice” or as an intuitive insight rather than a calculation. To achieve this realization, one must open oneself up to what can be discovered through reflective thinking, instead of narrowly focusing on means–end deliberation. This account of the experience of conscience is meant to be similar to the account provided by Socrates that we will examine in more detail in Section III.6 The reflective move that characterizes conscience is the reflective judgment about how one will view oneself after one has done that which one sees as wrong. This is why when one says “my conscience won’t let me do it” one means that conscience has provided such a strong motivation that it seems to disallow the putatively wrongful conduct altogether. This motivational experience seems to be fairly constant among those who have conscientious experiences, but the standards of rightness and wrongness generally vary. While conscience is not straightforwardly cognitive, its conative aspect does result from a reflection, not from a straightforward emotional response. The feeling of shame or guilt that accompanies conscience is what occurs after one has judged that one has acted wrongly, but the role of conscience is much more concerned with projected actions. Here guilt and shame are not the main motivational components. Instead, a person fears or worries that she will experience guilt or shame, and this is much more like a predictive judgment than an emotional response. Initially it is difficult to see how conscience could motivate effectively based on guilt or shame. The guilt or shame, which arises only after one has acted, can obviously not affect the conduct which one has already engaged in. For conscience truly to place barriers in one’s path concerning future conduct it must operate independently of the actual guilt or shame that is the response to doing what is perceived to be wrong. Only if one predicts that one will be guilt-ridden or shamed later and that that will cause internal disharmony (which is itself disvalued), will one be motivated by conscience against doing wrongful acts in advance of actually doing them. There is an important difference between the expressions “my conscience won’t let me do it” and “my conscience is bothering me for having done it.” Both are properly the actions of conscience but 5 6

Peter Winch, “Can a Good Man Be Harmed?”, chap. 10 of his book Ethics and Action (London: Routledge & Kegan Paul, 1972), p. 203. Ibid., p. 196.

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only the first will actually provide the kind of barriers to conduct that would cause one to avoid doing that which one sees as wrong. Consider the example of a person who is faced with the question of whether she should serve her country in the military. It is often thought that the conscientious objector decides not to serve because she places her conscience over the interests of her society. Indeed this is precisely the way that C. D. Broad characterized it in his essay “Ought We to Fight for Our Country in the Next War.”7 Conscientious objectors value their honor more than the collective good, Broad said. But he also admitted that some may genuinely object to serving in the military because it is thought that the military is not the sort of enterprise that is good for society. In my view, the conscientious objector often risks great harm to himself or herself, such as being imprisoned, so as to sway the majority from engaging in a course of conduct that is believed to be wrong for them.8 Insofar as this is a truly conscientious move, then it clearly is not merely a question of choosing one’s honor (seen as a purely egoistic concern) over the collective good. Instead, we have a good example of the merger within conscience of concern for the self and concern for society. It is a merger because it is still the case that the motivation to act conscientiously is the worry about the integrity of the self, what Broad calls one’s honor. But instead of honor being opposed to the interest of society, the two have merged together in some important sense. Of course, the interest of society here is not necessarily the declared interest of that society but the putative interest of what that society would or should value. Judgments of conscience have been seen as some of the most important for a person’s sense of integrity. And also these judgments are connected to a concern for the self. But insofar as one’s integrity connects with doing what one perceives to be the right thing to do, this type of concern for the self is very often a concern for what is right for the society. This has been true of philosophical accounts of conscience as far back in time as arguably the first account provided by Plato in his portrayal of Socrates’ final speech in the Apology, which I will examine in Section III of this chapter. Conscientious objectors often see themselves as doing the honorable thing, indeed as doing what they know to bring on difficulties for themselves, so as to advance the collective good. This is especially true of conscientious objectors who act out of principle. In Chapter 12, I will argue that selective conscientious objectors often act in no less honorable ways than those who are general conscientious objectors. The selective conscientious objector also can act on principles that are seen to be serving the collective good. 7

8

C. D. Broad, “Ought We to Fight for Our Country in the Next War,” and also “Conscience and Conscientious Action,” in Critical Essays in Moral Philosophy (New York: Humanities Press, 1971). In this sense, conscientious refusal is similar to civil disobedience. I am grateful to Kimberley Brownlee for discussion of this point.

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And now we come to the issue of why being forced to violate one’s conscience is so disvalued. There is a core commitment of the self to act in ways that do not bring dishonor on the self. Integrity of the self is only maintained when there are not things that one does that are at odds with one’s core beliefs. Being forced to act in ways that violate those core beliefs is to undermine the value of a given person’s life in terms of how one sees oneself. Once the core beliefs that are fundamental to who one is are undermined there is a violation of the core of the self, which is sometimes one of the worst things that can happen to a person.9 II

Huck Finn’s problem: false conscience

Before proceeding further to connect judgments of conscience with contingent pacifism, I must spend some time on an obvious problem, namely that some judgments of conscience are clearly at odds with any reasonable conception of what morality requires. To get as clear a case as we can of how conscience can lead us astray, I wish to follow Jonathan Bennett in discussing the case of Huck Finn’s conscience-based judgment that he should turn in his best friend Jim for having run away from his slaveholder owner. Bennett captures well the difficulty in discerning when conscience is grounded in bad versus good morality when he says: I think, though, that we must admit that someone who acts in ways which conflict grossly with our morality may nevertheless have a morality as his own – a set of principles which he sincerely assents to, so that for him the problem of acting well or rightly or in obedience of conscience is a problem of conforming to those principles. The problem of conscientiousness can arise as acutely for a bad morality as for any other: rotten principles may be as difficult to keep as decent ones.10

Bennett admits that he cannot prove that his morality is good and Huck Finn’s is bad, but he thinks most people will agree with him due to basic considerations of sympathy. Here is a short passage from Mark Twain’s novel that is the source of Bennett’s, and my own, worries about conscience. Jim said it made him all over trembly and feverish to be so close to freedom. Well, I can tell you it made me all trembly and feverish too, to hear him, because I begun to get it through my head that he was most free – and who was to blame for it. Why me. I couldn’t get that out of my conscience, no how nor no way.11 9 10 11

For more discussion of this point see my book, The Socially Responsive Self (University of Chicago Press, 1996). Jonathan Bennett, “The Conscience of Huckleberry Finn,” Philosophy, 49/188 (April 1974), 123–34 (124). Ibid., 125.

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Here Huck feels that his conscience is judging that he should turn Jim in rather than continue to aid him in escaping from enslavement. Bennett is surely right that most people today would think that Huck has it backwards: his conscience should be telling him to continue to help Jim escape from slavery. So, it appears that there is something wrong with Huck’s conscience – it seems to be a bad conscience or to be based in a bad morality. Bennett says: This is bad morality all right. In his earliest of years Huck wasn’t taught any principles, and the only ones he has encountered since then are those of rural Missouri, in which slave-owning is just one kind of ownership and is not subject to critical pressure. It hasn’t occurred to Huck to question those principles. So the action, to us abhorrent, of turning Jim in to the authorities presents itself clearly to Huck as the right thing to do.12

Not only does Huck’s conscience seem to be based in a bad morality, Huck finds his conscience speaking to him clearly of what is right and wrong, or at least what is wrong – seemingly morally wrong. Many people today would be inclined to focus on Huck’s upbringing, as Bennett does, in order to explain how Huck’s conscience could be so different from our consciences of today. But unless there is one kind of upbringing that is objectively right it is difficult not to feel the pull of Huck Finn’s case since his conscience speaks to him perhaps just as strongly as ours does to us. If Huck is thwarted in his attempt to live by his conscience-based judgments, it looks like at least we must admit that his integrity has been violated just as would be true if his conscience was good rather than bad. But this also seems wrongheaded since what Huck is trying to do to Jim seems so clearly, to us, to be morally wrong. Consider again the teenager who, because of his religious upbringing, says his conscience won’t let him fight in a war. That war may be supported by a majority of his fellow citizens who think serving in the war is not only morally right but also morally required for the safety of their society. In such a case, it is fair to ask whether these teenagers aren’t like Huck Finn in having consciences melded by upbringing that the rest of the society would not approve of. And this also should make us wonder what is so special, or weighty, about conscience that can withstand the cases that clearly, to us, are the sort of consciences that we should not pay deference to. Indeed, Jonathan Bennett takes up the case of the pacifist at the end of his essay on conscience. There he says: I think it was right to take part in the Second World War on the allied side; there were many ghastly individual incidents which might have led some to doubt the rightness of this participation in that war; and I think it would have been right for such a person to 12

Ibid.

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keep his sympathies in a subordinate place on those occasions, not allowing them to modify his principles in such a way as to make a pacifist of him.13

In Bennett’s view we shouldn’t let our sympathies have “a blank check in advance” but instead subject them to critical scrutiny. In other cases, as in the case of Huck Finn, Bennett praises Huck for letting his sympathies overcome his conscience. But the problem is to ascertain when to go with our sympathies and when not to give them that blank check. The issue is especially difficult because the experience of conscience seems quite similar regardless of whether one is motivated by good or bad upbringing. Introspection isn’t likely to help us figure out if we should disregard conscience because it could have been formed by bad moral upbringing as well. And introspection isn’t likely to tell us when we should follow conscience just because it was formed by good moral upbringing. Objective morality, if there is such a thing, does not normally distinguish itself by how it appears experientially. And for this reason we should be reluctant to force someone to go against his or her conscience even in those cases where it appears to us that the person’s conscience is really grounded in a bad morality. As Bennett also tells us: “This is not arrogance: it is obviously incoherent for someone to declare the system of moral principles that he accepts to be bad, just as one cannot coherently say of anything that one believes it but it is false.”14 There is a complex relationship between reason and sentiment in terms of how conscience is restrained. Reason can restrain conscience as it seeks to make more reasonable the often conflicting influences of upbringing that can result in what appears to be bad conscience. Similarly, but in very different ways, sympathy can humanize conscience by tempering the often harsh effects of upbringing on conscience. But for some people, no restraints seem acceptable. These people are moved so strongly by conscience on certain occasions that they cannot accept any restraints or limits on what they “know” they should do. Indeed, the emerging feelings of sympathy that Huck has for Jim could be seen as an emerging critical conscience. For some people conscience speaks so strongly and so authoritatively that it seems to them that it must be obeyed. For such people, as we will see in later chapters, what conscience dictates requires full compliance or else the self is put in jeopardy. The integrity of the self depends on doing exactly what conscience dictates. And in addition, what conscience dictates seems to be all that morality can demand. As Bennett pointed out, for many people what conscience dictates to be right or wrong cannot appear to be any different from what is objectively right or wrong. Yet, for some other people, perhaps the majority of people, 13

Ibid., 133.

14

Ibid.

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conscience is experienced as just one voice and not necessarily the loudest voice they hear. Indeed, these people seem to be able to step back and ask whether what their conscience dictates is in some sense false when considered from the alternative conscientious perspective of sympathy – as in the case of Huck Finn. The problem is that it is very difficult to tell whether one’s conscience is true or false, and even harder for those who assess us from the outside as it were, so we take a major risk when we act against conscience. The epistemic problems loom large and those who deny the legitimacy of their consciences, if they can, seem to run the risk that what they disregard is the true morality not the false morality of a twisted upbringing. It seems better to follow one’s conscience than to take the risk that one not only jeopardizes one’s integrity but likely acts wrongly as well. This is why Mark Twain’s account of Huck being nearly paralyzed by his confrontation with conscience rings true. When we don’t follow our consciences, even in those cases when clearly we should not, it still causes an internal disharmony. III

Socrates’ daimon

Discussions of conscience date back to the beginning of philosophy. In Plato’s Apology, Socrates discusses why he acts as he does toward the laws of the State. His rationale is that he is driven by an internal voice. That voice only tells him what not to do; the voice does not provide positive guidance. This construal of conscience is important for understanding what might be the limits of tolerance toward conscience that could be acceptable in a society where many people have different consciences. And yet if the individual’s voice of conscience were completely to replace the voice of the authority of the State, there is a real worry that social chaos would rein, with even simple co-ordination problems insoluble – a point I take up in Chapter 11 with a discussion of the connections between private conscience and public conscience, especially in cases of civil disobedience. Socrates describes the daimon, what he says is the voice of a god, as telling him what not to do. Here is a relevant passage: You have often heard me speak of an oracle or sign which comes to me, and is the divinity which Meletus ridicules in the indictment. This sign I have had ever since I was a child. The sign is a voice which comes to me and always forbids me to do something which I am going to do, but never commands me to do anything, and this is what stands in the way of my being a politician.15

In this account, conscience only forbids but never positively commands. The voice of conscience is thus limited and may be more palatable when an 15

Plato, Apology, trans. Benjamin Jowett (Oxford University Press, 1931), para. 58.

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individual’s conscience comes up against the authority of the State. In other words, conscience is not a source for the morality of all action – in fact a person’s conscience leaves a large swath of the morality of action unaddressed. Only those things seen as clearly wrong are singled out for the strong motivational pull of conscience. Socrates adds to this account of conscience that the voice of conscience cannot be silenced even if members of one’s society are silenced or even killed. At the end of the day, a person faces not other people who might condemn him or her but someone who is much more to be feared. A person confronts a voice within herself that, when not listened to, will force the self to be out of harmony with itself. The disruption of the self, where one part of the self condemns what another part of the self has done or is about to do, is much more difficult to withstand than the condemnation of one’s peers or other fellow society members. Later in this dialogue, Socrates addresses why he feels he is doing the right thing in accepting the death sentence of the State rather than fleeing. He says: Hitherto the familiar oracle within me has constantly been in the habit of opposing me even in trifles, if I was going to make a slip or an error about anything; and now as you see there has come upon me that which may be thought, and is generally believed to be, the last and worst evil. But the oracle made no sign of opposition, either as I was leaving my house and going out in the morning, or when I was going into this court . . . What do I take to be the explanation of this? I will tell you. I regard this as proof that what has happened to me is good, and that those of us who think that death is an evil are in error. This is a great proof to me of what I am saying, for the customary sign would surely have opposed me had I been going to do evil and not good.16

Here we come to the issue of the epistemic status of the dictates or judgments of conscience. Socrates regards his inner voice as providing guidance to him that gives clear proof of whether what he will do or has done is wrong. The proof is drawn in experiential terms, in the terms of how it feels not to be opposed by one’s inner voice. Of course this does not confront the issue of the origin of the voice. And as the Huck Finn example shows us, it may be that the voice of conscience is not the voice of a good morality. Yet in both cases, where conscience is good and where it is bad, the dictates of conscience are often experienced as just as authoritative, causing a serious problem for the person who must decide whether to heed or disregard the voice of his or her conscience. From the standpoint of risk, it seems that it is riskier to disregard than to heed the voice of conscience, if one values internal harmony. But this is not always true. In Socrates’ own case the risk is that he died in vain. And here the uncertainty of whether the voice of conscience conforms to objective moral 16

Ibid., 5th paragraph from end.

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standards, if there are any, is especially acute. And the fact that most people cannot tell whether their conscience has any relation to objective morality makes the question of risk even harder for a given person to assess. Socrates treats his inner voice as if it were the voice of a god, a daimon. But even at his time, a daimon could be either a good or bad spirit that guides individuals while they are on earth. Indeed, our English term “demon” is basically a transliteration of the Greek term daimon. The term is used throughout antiquity to refer to the spirits of people once alive who remain in an intermediate state after death. And the term probably gets incorporated into the term eudaimonia used by Aristotle and others to stand for a certain kind of contentment or happiness – literally being good-spirited, which of course suggests that one could also be consumed by bad spirits as well. And that is the problem. If conscience can be dated back to Socrates’ use of the term daimon, it appears that from its inception conscience was seen as either good or bad – with the individual person having a difficult time telling when his or her inner voice issues from one or the other. Socrates may have been the first philosopher to discuss conscience. If the Apology is indeed about conscience’s effect on us, there is the problem of which nearly all who have written about conscience are seemingly aware – that conscience is not the same as sympathy or reason and may be based on good upbringing or on bad upbringing. As with Huck Finn, following the dictates of conscience may be the wrong path to follow, although Socrates claims he can tell that his conscience points him in the right direction.

IV

Practical problems in assessing conscience’s dictates

If a person’s sense of subjective moral norms is learned in large part by listening to one’s conscience, then the practical problem is to discern when conscience’s norms are indeed tracking a good morality, or at least what most people over time would regard as a good morality. The judgments of conscience are not like most other judgments, arrived at by a consideration of reasons. Indeed, it is not clear that the judgments of conscience are primarily cognitive at all, although it would be a mistake not to see that the judgments of conscience are at least partially rational. In many people’s experience, conscience manifests itself more like a feeling than a conclusion of a bit of reasoning. It is for this reason that conscience often operates through feelings of guilt and shame. Consider the following Cold War-inspired example provided by the philosopher Richard Hare in his book Moral Thinking: I recently visited Prague to talk to some philosophers there. If when I was crossing into Czechoslovakia, the officials had asked me the purpose of my visit, I should certainly have told them a lie, because if they had known they would most probably have expelled

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me, as they have some of my colleagues, these visits being frowned upon by the Czech Government. And just as certainly, I should have felt, not merely fear of being found out, but a feeling of guilt at telling the lie (although I should have been in no doubt that I ought to tell it).17

According to Hare’s analysis of this example, there is a conflict between thinking that one ought to tell a lie, given the context of the situation, and also thinking that one ought not to tell a lie. If Hare is right, some people can be aware of this conflict, although not necessarily be able easily to resolve the conflict.18 One thing to note in Hare’s case is that the voice of conscience tells him not to tell a lie, it puts up impediments to action. On the Socratic account of conscience, if one is faced with a conflict it is highly likely that the impetus not to do something is probably coming from the voice of conscience. It is the fear of feeling shame or guilt that motivates us not to do certain things rather than to do something. But why is this? One of the reasons is that conscience does not deal with the whole of the moral domain, as I said, but only a segment of morality. This may perhaps explain why conscience can be bad – the full panoply of moral considerations may tell against what the conscience is currently dictating from the perspective of just one part of this moral domain. In this respect, let us return to Huck Finn’s dilemma, of whether to turn Jim in and hence not feel guilty, or not to turn him in based on his sympathy for Jim. In this case, Huck is aware of the force of conscience but also aware of a counterforce (perhaps even an alternative voice of conscience), sympathy. Of course, Mark Twain’s novel has a dramatic tension in that Huck does not know which of these two forces is for the good, although he seems to think that conscience has a kind of prima facie upper hand. When he does not follow the dictates of his conscience he feels bad because he thinks he has not done the right thing. The practical difficulty is that people often have a hard time telling whether their conscience does in fact align with something like a good morality. Most people follow the dictates of their consciences because it is generally a very strong motivator and because the dictates of conscience and the dictates of morality are very difficult to untangle from each other. Indeed, not having any better guide to morality than conscience, this strategy seems like a good one. It would be even better if people paid more attention when there were some other motivations that did not align with conscience, such as sympathy or rationality. 17

18

R. M. Hare, Moral Thinking (Oxford: Clarendon Press, 1981), p. 32. For an interesting discussion of Hare’s example, see Jiwei Ci, “Conscience, Sympathy, and the Foundation of Morality,” American Philosophical Quarterly, 28/1 (January 1991), 49–59. We might also worry that morality is so complex that it is possible that one ought to do what it is wrong to do. This topic has been addressed over the years as the problem of moral dilemmas. See Christopher Gowans (ed.), Moral Dilemmas (Oxford University Press, 1987). I benefited from a discussion of this point with Diane Jeske.

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One strategy is to follow the dictates of conscience in each case where there do not appear to be counterforces such as sympathy. And then in those cases where there is a conflict one should pay attention to the possible ways that one’s conscience may have gone wrong. One should be especially attentive to what about one’s own society might be an occasion for prejudice or other factors that could bring about bad upbringing and that could skew the conscience so that it aligns with a bad morality. Again, this is not easy to do since if one has been brought up in a society that is prejudiced, it may be very difficult to notice that there is prejudice rather than merely normal customs in that society. What is needed is to pay attention to cues that our conscience, normally trustworthy, may be failing us at the moment. The cues are most obviously that there are other motivations that pull us strongly in a different direction than the pull of conscience. Like some taboos, conscience may be at odds with rationality. And as I indicated above, conscience can be at odds with sympathy. It seems to me that these are two of the main cases of conflict that should alert us that there might be something wrong with our judgments of conscience. And as I have suggested, conscience should have aspects of rationality and sympathy in its judgments. One other important cue that our conscience may not be a reliable indicator of a good morality is when our society is deeply flawed, as is true of a prejudiced society. But the cues of such a society are often not as easy to discern as are those of sympathy or rationality. A person can make some headway in ascertaining whether his or her society is prejudiced by attempting to look at that society from the perspective of an outsider. In this respect, reading from magazines or books that present alternative perspectives to that of the dominant perspective in one’s society is often a good start.19 We might also consider Richard Hare’s dilemma for guidance on how to ascertain whether one’s society is flawed in a way that would make us distrust our upbringing and the conscience that is spawned from it. In his book, Moral Thinking, Hare proposes that our moral thinking proceed in a step-by-step manner where we first get access to our intuitions but then take on a critical stance toward those intuitions. This method is similar to the method of reflective equilibrium proposed by John Rawls in his book, A Theory of Justice. In both cases what is crucial is imaginatively to take on a critical perspective, typically the perspective of a group that is not one’s own, or that one does not know to be one’s own. We can regard the dictates of conscience as a source of pre-reflective intuitions that are data on which to start our moral thinking, but only as a start. One might here wonder whether conscience really does generally provide us with a good starting point. If conscience is tied to upbringing, and upbringing is itself 19

On this topic see the chapter on insensitivity in my book The Socially Responsive Self.

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tied to the norms of a particular society, why think that conscience has any claim to be data of any sort for ascertaining what morality requires? My answer will not please those who already believe that morality can be ascertained directly by appeal to reason or sympathy or some combination of the two. My view is that conscience is often the only initial data we have as a source, indeed a prime source, for our moral thinking.20 Some philosophers have pointed out that conscience appears to us in such a way that its authority cannot easily be denied since we generally lack the capacity to tell for sure whether or not conscience conforms to a good one. Or to put the point differently, a good morality does not appear to us with the same authority as does conscience. Now, of course, I agree that the way things initially appear is not a foolproof indication of the way things are. One need only reflect on the appearance of the bent stick in the pool of water that turns out to be straight when removed from the pool. Like our visual images that are generally a good starting point for our understanding of the true nature of the world of things, our consciences are generally a good starting point for our understanding of morality. In both cases, there is normally nothing more reliable as a starting point to which people have access initially. Aquinas held a view about the knowledge of God’s commands that is somewhat similar to the view I am urging that we adopt about conscience. Aquinas argued that while it is true that some people could ascertain directly what God’s will is, most people either lacked this ability or could not be sure that they had it. For the majority of people, appeals to the texts purporting to contain divine revelation is the best source of initial knowledge of God’s will.21 Of course Aquinas’ view is especially controversial today when many people doubt that there is a God, let alone one that has a will. Today, many people will attribute the view of God’s existence and attributes to simple superstition. And it is interesting to note that some theorists have made the same kind of charge against the dictates of conscience. Freud, for instance, claimed that conscience was nothing more than the internalized voice of one’s father.22 Yet even if conscience is grounded in upbringing, which is often flawed, it is unclear what else could be a reasonable substitute for the pre-reflective intuitions that moral thinking needs to proceed from. The idea of prohibitions on action that seem to be grounded deep in the self is nearly impossible for most people to shake. We have a continuous history of thinkers who have given voice to such a phenomenon, starting with Socrates. And this is not only true of theorists, but also of poets, novelists, playwrights, and essayists over this 20 21 22

See Hannah Arendt, “Thinking and Moral Considerations,” Social Research, 38/3 (Autumn 1971), 417–46. See Thomas Aquinas, Summa Theologica, trans. Fathers of the English Dominican Province (London: Burns, Oates, and Washburn, 1936). Sigmund Freud, The Future of an Illusion (New York: W.W. Norton, 1961).

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2,500 year stretch. Again, that there is such reporting of the phenomenon of conscience for so long does not make it the case that conscience is a true or a good morality. But it is evidence that we should not disregard it unless there is other evidence that is very strongly countervailing. Throughout this chapter, I have examined the phenomenon of conscience and attempted to assess its place in moral deliberation. The results of this chapter are not conclusive. It may yet turn out that conscience is conclusively debunked, perhaps by showing that it is grounded in an illusion. But until that happens, conscience provides us with at least a good starting point for our moral deliberations. As we will see in the next chapter, when governments try to silence conscience or force people to act against their consciences, the legitimacy of the State is called into question in a powerful way. V

Objections

Let us finally consider a few objections to the view I have set out. First, it could be said that the inner experience of conscience, like all of introspection, is unlikely to tell us much about the nature of morality or even of what our own moral beliefs are. Cognitive scientists and other psychologists have recently offered evidence for thinking that introspection is not a good guide to what is believed or known by a person who is engaging in the introspection. People are not especially good at discerning what their own mental states are at any given time. Insofar as conscientious judgment relies on applying what we learn about our own moral beliefs to a certain practical problem, conscience is not a good source of judgment since it is not reliable in figuring out what a person’s beliefs are. Indeed, people are especially bad at discerning what any of their mental states are that they are experiencing, such as sympathy, let alone the substance of those mental states. In response I admit that the reliability of conscience as a guide to what our beliefs truly are has indeed been challenged significantly of late. But it is worth wondering what the problem is if conscience cannot tell us accurately about our beliefs. We may have beliefs that are simply not accessible by conscience or any other means. If so, what are we to make of the beliefs that conscience is based in? Such beliefs that conscience uncovers or relies on may nonetheless be ones that are central to how we understand ourselves. And it may still be important for the integrity and coherence of the self that a person does not act in ways that are opposed by whatever it is that conscience is grounded in. A second objection could be that if conscience is not grounded in anything other than the peculiar beliefs that a person has come to acquire, then conscientious judgment loses any claim to be connected to objective, or a good, morality. And it is then unclear why the judgments of conscience should be given any special standing in society. People can of course hold whatever beliefs they

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wish. But while idiosyncratic beliefs may make people unique, these conscientious beliefs have no special claim to be morally respectable beliefs. A person should not grant to such beliefs higher or more important status than other beliefs, especially when such beliefs conflict with the beliefs of the majority of members of one’s society. And without such a pedigree it is unclear why conscientious beliefs should be highly respected by the members of a person’s society. This objection goes to the heart of the main thesis of this chapter, and the next chapter as well. The special status of conscientious judgments, both for the individual and for the society, turns on the respectability of such beliefs – that they should be respected by the individual and by the society, but not that they should be seen as unassailable. The account of conscience I have set out turns on the idea that the judgments of conscience are somehow dear to the self because they issue from the self’s core. But if this is not the case, then it does become hard to see why we should give the judgments of conscience any heed. One answer to this problem is to say that the integrity of the self seems to be simply valuable in itself and hence worthy of respect on that ground. Socrates worries that if his inner voice is not listened to he will be out of harmony with himself.23 As a result the person who fails to heed the judgments of conscience will not be true to himself or herself and will not be able to hold others up to the judgments of morality for lack of standing to make such a claim. There is a kind of tension in the self that most people avoid so as to have the moral standing in their own lights and that of their fellow society members that comes from being true to what one believes to be the right thing to do. A third objection thus arises to my account, namely that heeding the dictates of conscience is only important for a sense of inner peace but not for much more. If there is no connection between conscience and a good morality, or any worthy set of moral beliefs at all, then the moral value of the demands made by conscience on the self or society seems completely lost. And it seems odd to urge that people follow their consciences as if they were a good moral guide when all these people are doing is following advice about what makes them feel good. This seems pernicious as a moral doctrine and certainly not something that should be recommended to young adults trying to decide whether they should serve their countries by participating in a given war. I would respond by pointing out that inner peace is indeed quite valuable, especially if a person is unable to discern much about the nature of a good morality. If the self is schizophrenic it will often be simply immobilized. Even if all that acting on the dictates of conscience gains is inner peace, that is something itself valuable. The person at inner peace is at least the sort of person who is able to act in ways that morality might demand down the road. Those 23

On this point see Arendt, “Thinking and Moral Considerations.”

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who are torn apart by inner turmoil will not be able to help themselves or their societies. But it is also my view that there is more to the judgments of conscience than their connection to inner peace. In addition, there is a good chance that in most cases the dictates of conscience will not lead us astray. Of course this is a probabilistic claim for which it is hard to get evidence. But over time people report that their consciences have indeed been a good guide to moral action, and while they may be mistaken we have little evidence that any other guide is better. Fourthly, there is the objection that is raised by the story of Huck Finn – what if the judgments of conscience are not just idiosyncratic and often right but often completely wrong, where a person’s conscience tells that person to do what is the wrong thing to do, and in most cases? Such a situation will arise if conscience is formed by the education one gets in one’s society and that society is profoundly racist, for example. In such situations, following conscience is not the best strategy or even an especially worthy strategy for the State to give deference to. I would respond that in such a world where the voice of conscience is known to be completely wrong, there are other sources of judgment to turn to, such as sympathy and reason, but it is true that conscience should not be respected. The problem for any given person is to discern whether he or she is indeed living in such a prejudiced society. And I would be the first to admit that such a determination is especially hard. A person must check his or her conscientious judgments against not only judgments of others in his or her society but against people from other societies as well. I will take up this issue again in other chapters. But I admit that this opens the door for yet another objection. And here is the last of the objections. It is unclear how a person can tell if the voice of conscience is wrong or not. And if it is opaque to the person involved about even the most basic discernment of when conscience has gotten us to go off the rails, then there is considerable risk in following conscience. And the risk gets much greater if the society feels it must respect a person’s conscientious beliefs – even when it appears that the public welfare will thereby suffer. These considerations are such that they outweigh the worries about disrupting the inner peace of the self. Indeed, the better bet is to disregard conscience whenever there is a strong risk that following conscience may be precisely the wrong thing to do morally. My response to this very important objection is to admit that I do not have a strong reply. In positions of uncertainty it of course makes sense to try to avoid the worse risks. But in most cases, disregarding the voice of conscience seems like too radical a conclusion to draw from the premises concerning the inability to say for sure that conscience is guiding us properly. And as I have said, it is very unclear what would be a better guide than one’s conscience, especially

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given the long historical record of accounts of conscience as providing such important guidance particularly in times when morality is unclear at the societal level, when the chips are down as it were.24 But of course this objection makes it clear that a person’s conscientious judgments should not be given overriding significance. Some philosophers have said that reason is and should be our only guide. Such views seem initially to be at odds with the emphasis on conscience I have supported. But as I just indicated, what I support is a plurality of sources of action, with strong emphasis on conscience, sympathy, and reason. And I have suggested that conscience would be odd indeed if it were not at least partially rational. What I would deny is that there is a good basis to act on only one of these sources. I do not have the space to defend this view here, but in many of the cases we will consider in the following chapters conscience and reason seem to push us in the same direction, not in divergent ones. In the next chapter we explore in much more detail what to think of the clash between a person’s conscience, what we will call private conscience following Thomas Hobbes, and what might be called the public conscience of the society, by looking at some of the debates in the seventeenth century as well as today about how to think of those who oppose their society, as in cases of civil disobedience. And in Chapter 12, I will then work out a view of selective conscientious refusal. 24

See Arendt, “Thinking and Moral Considerations.”

11

Public conscience and civil disobedience

Philosophers such as Thomas Hobbes drew a distinction between private and public conscience that is relevant to our discussion in the previous chapter. Public conscience is the collective sense of conscience of the people of a State. When a person is denied the opportunity to follow the dictates of his or her private conscience, the legitimacy of the State, understood in terms of the public’s acceptance of the right to rule, is not immediately called into question. Yet, in some cases, a State that forces some of its citizens to violate their private consciences shows such disrespect for these citizens that the State loses its legitimacy. In this respect, the case for refusal to obey the law is made stronger than it otherwise would be. Given that the person who does not follow the dictates of private conscience suffers inner disharmony or worse, the State that forces a citizen to violate the citizen’s private conscience fails to show basic respect for the citizen and undermines the authority of public conscience. Following this highly plausible seventeenth-century conception of State legitimacy leads to the idea that the State is itself not owed obedience or fidelity if there is not a rudimentary respect for the private consciences of its citizens. By contrast, when a State turns against the dictates of public conscience there are much more serious consequences than if it denies the claims of private conscience. Public conscience has the kind of status such that denying its claims not only jeopardizes the legitimacy of the State but also the standing of the State in the society of States. I will present this issue in terms of the rudiments of public conscience in nearly every society that manifests respect for individual liberty of private conscience. There is a limit to State legitimacy concerning how much deference is afforded to private conscience by the public conscience of the society. This is how things are regarded today in international law. I shall argue that this is also how things stood in the seventeenth century, perhaps in the writings of Thomas Hobbes, but certainly in the writings of John Locke as well. The latter claim is not terribly controversial but the former is highly controversial. In our examination of Hobbes’s views of conscience we will uncover ideas that have salience today for our considerations of contingent pacifism and conscientious refusal. 214

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In this chapter I will first say a bit about the general idea of public conscience and the related idea of equity in law. In the second section, I consider a problem examined by Hobbes, namely, that allowing citizens to decide which laws to obey on the basis of private conscience can lead to a breakdown in the lawful order that States are supposed to provide for their citizens. Third, I will examine Hobbes’s views of public conscience, especially how equity relates to public conscience. Fourth, I will provide a reconstruction of the paradigm of legitimacy that seventeenth-century philosophers, especially Hobbes and Locke, provided. Here, I will explain why it is that interference with a citizen’s decision to follow the dictates of private conscience is a problematic State act that raises legitimacy issues. Fifth, I will provide an argument in defense of civil disobedience that starts with Plato’s Crito to explain another basis of the appeal of the idea of public conscience. In the sixth section, I will discuss refusal to obey the law as it relates to conscientious refusal. The interplay of private and public conscience will be investigated to see how best to understand a variety of cases involving refusal to obey the law. I

Legal conceptions of public conscience and equity

In law, appeals to public conscience (as in the debate about whether public displays of pornography violate the sentiments of the community) are clear references to the moral sentiments of a society, treating the society as having a conscience in a similar way that an individual does. Morality and law overlap in the concept of fairness, understood as a narrow consideration of justice that concerns whether the application of law to a particular case treats the unique features of the parties in a way that respects their salient differences. Applying law to facts is not merely a mechanical procedure but must take into account who the parties are and what their circumstances are. Yet to take such considerations into account, when not specifically called for by a law, is to introduce extrajudicial considerations into legal decision-making. Appealing to standards of public conscience in judicial decision-making is often more than merely a narrow matter. Moral fairness can concern foundational normative ideas in a given society, and perhaps in every society, such as are embodied in the rule of law. Historically, the concepts of public conscience and equity are treated as similar or equivalent to one another. To call for fairness as what public conscience demands is also to call for equity in the way parties are treated at law. In Book 5 of the Nicomachean Ethics, Aristotle set out the first understanding of equity (epieikeia) in legal philosophy: The same thing then is just and equitable, and while both are good the equitable is superior. What creates the problem is that the equitable is just, but not the legally just but

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a correction of legal justice. The reason is that all law is universal but about some things it is not possible to make a universal statement which shall be correct. In those cases, then, in which it is necessary to speak universally, but not possible to do so correctly, the law takes the usual case, though it is not ignorant of the possibility of error . . . And this is the nature of the equitable, a correction of law where it is defective owing to its universality.1

Aristotle then uses an analogy to explain how he conceives of equity. about some things it is impossible to lay down a law, so that a decree is needed. For when the thing is indefinite, the rule also is indefinite, like the leaden rule used in making the Lesbian moldings; the rule adapts itself to the shape of the stone and is not rigid, and so too the decree is adapted to the facts.2

This is the classical account of equity understood in its narrow sense. Equity as fairness is necessary to correct the law in certain cases where the facts are not the ones that were originally contemplated by the lawmaker. By the nineteenth century, Joseph Story gives an account of a broad conception of equity that is not afforded the full force of law but occurs in legal writings nonetheless: In the most general sense, we are accustomed to call that equity, which in human transactions is founded in natural justice, in honesty and right, and which properly arises ex aequo et bono. In this sense it answers precisely to the definition of justice, or natural law, as given by Justinian.3

Story contrasts this broad account of equity with that narrow account of Aristotle, who, Story says, has provided the correct conception of equity employed most commonly in law, where equity is merely a “correction of the law.”4 One scholar has distinguished a procedural from a substantive conception of conscience in late medieval and early modern discussion of equity. The procedural sense of conscience concerns the “private knowledge or belief” of a party or a judge that cannot be alleged and proved but which is an important consideration in how a judge administers justice for the parties. An example is cited where a defendant could not make payment of a debt because the defendant was in jail, but where the court could not take notice of this fact. The judge needed to consider the equity of deciding against the defendant in this situation. By contrast, the substantive sense of conscience is where judges refer to general principles of morality in making their rulings, even allowing these moral considerations to trump specific legal considerations in black-letter law – here 1 2 3 4

Aristotle, Nicomachean Ethics, trans. W. D. Ross (London: Oxford University Press, 1954), Book 5, chap. 10, 1137a31–1137b27. Ibid., 1137b28–32. Joseph Story, Commentaries on Equity Jurisprudence (1834) (London: Stevens and Haynes, 1884), pp. 1–2. Cicero also talks of the principle of ex aequo et bono in his book On Duties. Story, Commentaries, p. 3.

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considerations of equity may even trump due process of law in order to achieve a morally just result.5 In my view, there is also a middle position on public conscience that is today represented by the use of the term public conscience in the Martens Clause appended to the Hague Conventions at the turn of the last century. According to this view, public conscience refers to those moral sentiments that are offended by grossly inhumane practices. Such inhumane practices are seen as so contrary to morality that they should also be seen as illegal in international law even though they are not specifically proscribed by treaty or other explicit source of law. On this account, equity is a gap-filler, but more than merely a correction of law. There are substantive features of equity on this understanding. There are standards affirmed by public conscience domestically and also internationally – where these standards are the core moral concepts that undergird the justice of a system of law. This is neither narrow equity as correction of the law, nor wide equity that encompasses all of natural justice, but only those moral considerations that are core concepts in a given legal system. In my view Hobbes was one of the first to discuss this middle conception of equity and public conscience. As the concept of equity developed, there is a sense in which equity became linked with public conscience, the collective sense of fairness that undergirds a system of law and makes that system deserving of respect. Today, the “dictates of public conscience” are often referred to in international law, as ideas that ground the international system of law, as we saw in Chapter 9. In this chapter I will next explore Hobbes’s ideas of private and public conscience, and especially their relationship to equity, to shed light on contemporary debates about civil disobedience and conscientious refusal in domestic law. Hobbes’s worries about private conscience and his support for public conscience are important ideas to mine for understanding equity and public conscience in legal and moral theory today, especially as related to civil disobedience and conscientious refusal issues.

II

Private conscience and the laws of nature

In the Leviathan, Hobbes sets out various “diseases of a commonwealth . . . that proceed from the poison of seditious doctrines.” The first two of these diseases are relevant to our topic. Hobbes first discusses the doctrine “That every private man is judge of good and evil actions,”6 and provides a good sense of why 5 6

Mike MacNair, “Equity and Conscience,” Oxford Journal of Legal Studies, 27/4 (2007), 659–81. Thomas Hobbes, Leviathan, in English Works of Thomas Hobbes, ed. Sir William Molesworth, 11 vols. (London: John Bohn, 1839–45) (hereafter EW), vol. III, p. 310; Thomas Hobbes, Leviathan, ed. Richard Tuck (Cambridge University Press, 1996) (hereafter Tuck), p. 223.

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this is especially problematical: “From this false doctrine, men are disposed to debate with themselves, and dispute the commands of the commonwealth; and afterwards to obey, or disobey them, as in their private judgments they shall see fit; whereby the commonwealth is distracted and weakened.”7 The problem here is that the habit of obedience to law is weakened to the point that the commonwealth itself is weakened. Hobbes also addresses the seditious doctrine that “whatever a man does against his conscience, is sin.” Here Hobbes boldly states one of his main concerns: “For a man’s conscience, and his judgment is the same thing, and as the judgment, so also the conscience may be erroneous.”8 Again Hobbes identifies one of the enduring problems about conscience: though he that is subject to no civil law, sinneth in all he does against his conscience, because he has no other rule to follow but his own reason; yet it is not so with him that lives in a commonwealth; because the law is the public conscience by which he hath already undertaken to be guided. Otherwise in such diversity, as there is of private consciences, which are but private opinions, the commonwealth must needs be distracted, and no man dare to obey the sovereign power, further than it shall seem good in his own eyes.9

Hobbes distinguishes between two forms of conscience, private and public, marking the public conscience as what people have agreed to abide by when they leave the state of nature and enter into civil society. According to Hobbes’s account, private conscience is our only reliable guide to what we should do in the state of nature. In the state of nature there are no civil laws and all that we have for guidance are the laws of nature, which specify what it is reasonable to do for people who are primarily motivated by an intense worry about self-preservation. In such a state, conscience is the faculty of reasonable judgment, which is disregarded at the peril of the individual person, until the person enters civil society. Hobbes recognizes that even once a person enters civil society, war is different from most other situations that a citizen can face. For in war, the citizen’s self-preservation is threatened in a way that contrasts with the normal protection of self-preservation offered by the sovereign. Here is how Hobbes tries to articulate his very complex position on these issues: No man is bound by the words themselves, either to kill himself, or any other man; and consequently that the obligation a man may sometimes have, upon the command of the sovereign to execute any dangerous or dishonorable office, dependeth not on the words of our submission; but on the intention, which is to be understood by the end thereof. When therefore our refusal to obey, frustrates the end for which the sovereignty is ordained, then there is no liberty to refuse: otherwise there is.10 7 10

8 Ibid., EW, p. 311; Tuck, p. 223. Ibid. Ibid., EW, pp. 204–05; Tuck, p. 151.

9

Ibid. (my italics).

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So for Hobbes one can justly refuse to serve in the military, insofar as it is a dangerous activity that risks our self-preservation, even if refusing to do so violates the law and seemingly the public conscience that otherwise would hold sway over the judgments of private conscience. Hobbes summarizes his overarching view when he says: “the obligation of subjects to the sovereign, is understood to last as long, and no longer, than the power lasteth, by which he is able to protect them.”11 Indeed, as we will see, Hobbes makes it a condition of obedience to law that the sovereign lawmaker is able and willing to protect the citizen, and hence to ensure that the citizen is much better off than he or she was in the state of nature. Public conscience is to hold sway over private conscience insofar as following public conscience is indeed likely to promote the security of the citizen. Yet, in cases where one’s self-preservation is jeopardized, certain laws of nature may hold sway over civil laws. No one can be bound to act contrary to that which grounds all of the laws of nature, namely self-preservation. The laws of nature bind only in private conscience, or as Hobbes puts it, “they require nothing but endeavour, he that endeavoureth their performance, fulfilleth them.”12 Hobbes holds the view that the “laws of nature oblige in foro interno; that is to say, they bind to a desire they should take place: but in foro externo, that is, to the putting them in act not always.”13 But even so, the citizen should, in certain cases, act on the laws of nature rather than civil laws. In Part II (De Corpore Politico) of his Elements of Law, Hobbes explains that it is consistent with the dictates of conscience to obey the civil law, and even to be forced to obey it. For the conscience being nothing else but a man’s settled judgment and opinion, when he hath once transferred his right of judging to another, that which shall be commanded, is no less his judgment, than the judgment of that other. So that in obedience to laws, a man doth still according to his own conscience, but not his private conscience.14

In civil society private conscience is generally subordinated to public conscience, especially the public conscience embodied in public laws that each citizen has agreed, at least tacitly, to conform his or her will to. But there are limits to the subjection of the private conscience to the public conscience in Hobbes’s account. The class of exceptions concerns when conforming to the public conscience jeopardizes the self-preservation of the individual citizen. This is clearest in cases of conscription for serving in war, but it also occurs in cases where a citizen has been condemned to death. In both 11 13 14

12 Ibid., EW, pp. 145–46; Tuck, p. 110. Ibid., EW, p. 208; Tuck, p. 153. Ibid., EW, p. 146; Tuck, p. 110. Thomas Hobbes, Elements of Law, in EW, vol. IV, pp. 186–87.

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cases, the individual citizen is free to follow his or her own private conscientious judgments – and the reason seems to be that the individual is now cast back into the state of nature. III

Hobbes’s conception of public conscience

Social contract theorists like Hobbes posit a time when people decide to leave the state of nature in order to get more stability in their lives. In contracting into civil society, people gain the freedom from worry about self-preservation that a strong sovereign can provide for them. In exchange, people agree to let the sovereign determine what it is right and wrong for them to do in this new state of civil society. Hobbes calls this a shift from private to public conscience. The judgment of public conscience is the judgment of the sovereign, yet it is not the private judgment of the sovereign but rather the judgment of the sovereign concerning what would be best for the citizens. The citizens respect the judgment of the sovereign insofar as the sovereign is indeed able to maintain the peace and dispel the citizens’ worry about self-preservation, understood quite broadly.15 The main way for this arrangement to be disrupted is for the citizen to reassert his or her private judgment over the sovereign’s judgment. And it is during wartime that such an assertion of the supremacy of private conscience would seem most worrying. Yet, Hobbes does not argue that private conscience’s judgment must bow to public conscience’s judgments in cases of war. And he tackles straightforwardly the problem of refusal to follow the commands of the State to serve in the military, giving a considerable amount of nuance to the way he regards the problem of refusal to obey the law. In discussing the liberty of subjects, in Leviathan Hobbes provides a discussion of conscription, arguing that only when the fate of the commonwealth is at risk does the citizen not have a right to refuse to serve: a man that is commanded as a soldier to fight against the enemy, though his sovereign have right enough to punish his refusal with death, may nevertheless in many cases refuse, without injustice; as when he substituteth a sufficient soldier in his place . . . and there is allowance to be made for natural timorousness . . . to avoid battle is not injustice, but cowardice.16

Hobbes goes on to argue that things are different if the soldier has enlisted rather than been conscripted. The soldier who volunteers and then refuses to fight does commit injustice, but it seems this is because of going back on a promise. And things are also different if the very survival of the State depends 15 16

I spend a lot of time arguing for this controversial interpretation of Hobbes in my recent book, Limiting Leviathan. Hobbes, Leviathan, EW, p. 205; Tuck, pp. 151–52.

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on this citizen’s fighting; in that case it is unjust to refuse to serve. I discuss this issue in Chapter 12. The judgments of public conscience are inscribed in law for Hobbes, but this is ambiguous in that we are not initially told what type of law this is. In the only passage in Leviathan where Hobbes talks about public conscience, he indicates that it is civil law he has in mind here. But in the Dialogue, Hobbes also talks of the conscience of the King as encompassing equity, where this kind of public conscience is meant to be a basis for assessing the civil law. In this sense, equity as a part of public conscience can be a check on unfairness of the statute law or its interpretation. And this creates a puzzle for understanding public conscience for Hobbes. Hobbes seems to have two things in mind when he talks of public conscience. The first is simply the civil laws as they have been promulgated by the sovereign. Yet there seems to be a second sense of public conscience that is not what the laws actually dictate, but what the spirit of the laws is – what a lawmaker would have said if he or she had considered certain cases. In order to figure out what the lawmaker would have said, an appeal must be made to the norms that underlie the civil law. Those norms are also part of public conscience and can be used to criticize and change the actual civil law in certain kinds of cases. The best evidence for seeing this as Hobbes’s view comes from Hobbes’s Dialogue.17 In the Dialogue, equity is understood as public conscience, that is, the conscience of the sovereign as expressed through the sovereign’s dictates. Equity is distinguished from both positive law in general and statute law in particular. Courts of justice deal with violations of positive statute law, whereas courts of equity deal with violations of the law of reason and fairness in application of law. philosopher . . . the difference between injustice and iniquity is this; that injustice is the transgression of a statute-law; and iniquity the transgression of the law of reason.18

One would think that equity as primarily a natural law precept would not be binding in civil society. Yet, it is interesting to note that while Hobbes claims that equity is not law properly so called, he nonetheless says that equity is binding, particularly on 17

18

For an excellent treatment of the various ways that equity occurs in Hobbes’s writings, see Dennis Klimchuk, “Hobbes on Equity,” in David Dyzenhaus and Thomas Poole (eds.), Hobbes and the Law (New York: Cambridge University Press, 2012), pp. 165–85. Thomas Hobbes, A Dialogue Between a Philosopher and a Student of the Common Laws of England, EW, vol. VI, pp. 25–26; Thomas Hobbes, A Dialogue Between a Philosopher and a Student of the Common Laws of England, ed. Joseph Cropsey (University of Chicago Press, 1971) (hereafter Cropsey), p. 70.

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the sovereign: “the King is not bound to any other law but that of equity.”19 In words reminiscent of Leviathan, Hobbes also says: “the King is subject to the laws of God, both written and unwritten, and to no other.”20 Equity is thus part of the unwritten law but it is also related to, or perhaps a part of, public conscience. In my view, one way to reconcile this potential problem is that Hobbes believes that the laws of nature do not cease to apply when civil society is formed. And while public conscience is inscribed in statute law, public conscience also retains a foot in natural law, primarily through the idea that statute law needs to be instituted and applied so as to be consistent with fairness, even what might be called fundamental fairness not merely procedural fairness. Equity is in a sense public conscience in that it corrects the possible unfairness of the statute law by reference to what it is that already undergirds the statute laws and the rest of the legal system. Public conscience is inscribed in statute law insofar as the citizens have consented to let the sovereign make the laws. But the citizens have not consented to everything that the sovereign might demand of them, since the citizens have not given up their right to self-defense and self-preservation, where self-preservation is also concerned with contentment and liberty. In my other writings on Hobbes I have attempted to show that equity sets important constraints on sovereign lawmaking. Here we can characterize these restraints in terms of the fundamental liberty and safety that must be protected in any legitimate system of good laws.21 Whether and to what extent the principles of equity really bind the Hobbesian sovereign can be understood by considering the example of Thomas More. More was appointed by King Henry VIII, and dependent on this sovereign for his power as Chancellor and head of a court of equity. Yet, More was able to exercise independent judgment and to counter the wishes of the King concerning his desire to get his marriage annulled. Ultimately the King succeeded in getting More replaced by someone who would do the king’s bidding, and of course More was powerless to prevent his own beheading. But Thomas More is remembered for the exercise of his independent judgment as the conscience of the King even as he countermanded the King’s will and risked the King’s wrath. The king’s Chancellor, as the conscience of the king and the one entrusted to uphold equity, could decide issues not just according to a procedural sense of equity but also by reference to substantive fairness considerations. The Chancellor, as was certainly true of Thomas More, appealed to the most basic moral considerations in England in determining whether the King’s dictates exceeded the bounds of his authority. Hobbes seems to have similar things in mind in his own discussion of equity and public conscience in the Dialogue. What Hobbes 19 21

20 Ibid., EW, p. 21; Cropsey, p. 67. Ibid., EW, p. 26; Cropsey, p. 70. See esp. May, Limiting Leviathan, chap. 3.

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says here is best understood in similar terms to what Lon Fuller called the procedural natural law,22 a concept that sits between purely procedural matters, on one hand, and much more robust substantive natural law considerations, on the other hand.23 The public conscience, embodied in the civil laws, is generally deserving of fidelity, especially when it is corrected so it is applied fairly. And there are also times, recognized by Hobbes, when the individual’s private conscience, relying on equity, can trump the public conscience. Hobbes’s discussion of cases of conscription or capital punishment provide some of the richest material for understanding what are the limits on the subjection of private conscience to public conscience. When the survival of the commonwealth is not at risk, if the sovereign forces a citizen to act contrary to his or her private conscience, then the sovereign might also violate the public conscience. Hobbes recognized that public conscience should not be understood merely as statute law. The limits on statute law should be understood in terms of a different understanding of public conscience, namely as equity. In this form of public conscience there was room for limited natural law concepts as restrictions on sovereign authority.24 IV

State legitimacy for Hobbes and Locke

In the seventeenth century a theory of State legitimacy developed that is crucial for understanding the limits on public conscience that I have been exploring in this chapter. I will say more about Hobbes’s view before turning to Locke who allowed for more restrictions than did Hobbes concerning what the sovereign can legitimately command the citizen to do. Yet, as we just saw, on at least one interpretation Hobbes already allowed for restrictions on what the sovereign could command during war, indeed much more than Hobbes’s critics would normally admit. Let us first continue explicating Hobbes a bit longer to see what was the theory of State legitimacy, or authority as Hobbes named it, which initiated the modern debate. Hobbes begins his discussion of the authority of sovereigns and of their laws by first discussing what persons are and then what authority in general means. A Person, is he, whose words or actions are considered, either as his own, or as representing the words or actions of another man, or of any other thing, to whom they are attributed, whether truly or by fiction. When they are considered as his own, then is he 22 23 24

See Lon Fuller, The Morality of Law (New Haven, CT: Yale University Press, 1963), pp. 96–97. See Michael Sevel, “What the Sovereign Can’t Do,” Hobbes Studies, 27 (2014), 191–98, as well as my response to Sevel, “Limiting Leviathan: Reply to Critics,” in the same issue, 199–206. In De Cive, chap. XII, sect. 2, Hobbes does say that it is unjust to refuse to fight in a war that one judges to be unjust. But that is a reference to justice rather than to equity. For much more on this and other textual disputes see my book, Limiting Leviathan.

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called a natural person: and when they are considered as representing the words and actions of another, then is he a feigned, or artificial person.25

The sovereign is seen as an artificial person who gets his or her authority from the people of the commonwealth. Hobbes gives the first modern account of the authority of sovereigns when he compares the sovereign’s authority to that of a stage actor. Of persons artificial, some have their words and actions owned by who they represent. And then the person is the actor, and he that owneth his words is the Author, in which case the actor acteth with authority . . . So that by authority, is always understood a right of doing any act; and done by authority, done by commission or license of him whose right it is. From hence it followeth, that when the actor maketh a covenant by authority, he bindeth thereby the author, no less than if he had made it himself; and no less subjecteth him to all the consequences of the same.26

Those who act with authority over others are those who represent these others by their express or tacit consent. Sovereigns have authority only insofar as they have been designated to act in behalf of a group of individuals: “For no man is obliged by a covenant, whereof he is not author; nor consequently by a covenant made against, or beside the authority he gave.”27 In Hobbes’s view, this authority establishes the obligation that citizens have to obey the law, but there are distinct limits on the sovereign’s authority to make binding law, since “the end of obedience is protection.”28 When the sovereign is not protecting but endangering the citizens, they have a right to refuse to do what the sovereign has commanded. Such cases are rare for Hobbes, restricted mainly to that of conscription and the death penalty, but they are clearly applicable to the situation of war. Perhaps surprisingly, as we have seen, Hobbes says that sovereigns cannot legitimately punish those who refuse to obey a conscription order, except in times of dire self-defense of the nation. John Locke has a wider construal of what are the limits of sovereign lawmaking legitimacy, but is surprisingly less concerned about conscription than is Hobbes. One notices how Locke differs from Hobbes early in The Second Treatise when Locke says that there are some forms of government, absolute monarchy for example, that are no better than the state of nature and hence do not attain legitimacy.29 Unlike Hobbes, Locke believed that government could be illegitimate when liberty is severely limited. Even on the most liberal 25 26 28 29

Hobbes, Leviathan, EW, p. 147; Tuck, p. 111. 27 Ibid., EW, p. 149; Tuck, pp. 112–13. Ibid., EW, p. 148; Tuck, p. 112. Ibid., EW, p. 208; Tuck, p. 153. Also see the introduction to my book, Limiting Leviathan. John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge University Press, 1960), The Second Treatise, para. 13, p. 276.

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interpretation, Hobbes recognized far fewer such cases than did Locke although Hobbes clearly did recognize some cases. Locke is also much more explicit than Hobbes in saying that “the law . . . was made for my Preservation.”30 Like Hobbes, Locke declares that in the state of nature “my self can only be judge in my own Conscience.”31 Yet, Locke also says: But if either these illegal Acts have extended to the Majority of People; or if the Mischief and Oppression has light only on some few, but in such Cases, as the Precedent, and consequences seem to threaten all, and they are persuaded in their Consciences, that their Laws, and with them their Estates, Liberties, and Lives are in danger, and perhaps their Religion too, how they will be hindered from resisting illegal force, used against them, I cannot tell.32

Notice that oppression is here declared to be illegal, showing the clear limits of State legitimacy. Also notice that Locke allows for what Hobbes called our private consciences to continue to be judge of whether to obey the law well after people have entered into civil society. Hobbes and Locke are in agreement that self-preservation remains a key motivator and limiter of governmental legitimacy. As Locke says: “For the Society can never, by the fault of another lose the Native and Original Right it has to preserve it self.”33 In unequivocal terms Locke declares: “By this breach of Trust they forfeit the Power the people put into their hands.”34 And to the question “Who shall be Judge?” Locke asserts that, of course, “The People shall be Judge . . . If this be reasonable in particular Cases of private Men, why should it be otherwise in that of the greatest moment, where the welfare of millions is concerned.”35 The problem is that conscription can be defended in terms of the “welfare of millions.” And so Locke, given the above quotation, would be conflicted about whether to allow that the private conscientious judgment should hold sway over that of the government’s public conscience when the threat to society is of the sort that occurs during an actual, or threatened, invasion. Indeed, at the very end of The Second Treatise, Locke says that “The Power that every individual gave the Society, when he entered into it, can never revert to the Individuals, as long as the society lasts, but will always remain in the Community.”36 The two most significant seventeenth-century social contract theorists viewed legitimacy as necessarily allowing for some dissent and civil disobedience. From the highly intuitive premises and arguments of Hobbes and Locke it appears to me that there are good grounds for thinking that there will be limits on what States can legitimately require of citizens during war, whether or not 30 32 34

31 Ibid., para. 21, p. 282. Ibid., para 19, p. 278. 33 Ibid., para. 220, p. 411. Ibid., para. 209, pp. 404–05 (my italics). 35 Ibid., para. 240, pp. 426–27. 36 Ibid., para. 243, pp. 427–28. Ibid., para. 222, p. 412.

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those wars are supported by the public conscience. And the limits are ones that can be seen as grounded in the middle category of equity, where appeal is made to what is the moral grounding of the society. Hobbes argued that there was only one case where the State could require a person to serve in the military, namely where the society’s very existence was threatened. Presumably the only cases for which this is true concern invasion or the very strong likelihood of something equivalent happening that would undermine the State and for which military action is necessary to stop it. And yet, considering such cases will next lead us to see that they are very rare indeed. First, there is the idea that the State has the right to defend itself and to conscript citizens to aid in that venture. Second is the idea that only when it is necessary for each citizen to bear military arms to defend the State can that State require the citizen’s participation in war. Each of these ideas needs to be carefully examined to see if the conscientious demands of a citizen to be exempted from military service should not be honored. At the base of these considerations is the worry that the State would undermine its legitimacy if it unnecessarily coerced its citizens to violate their core beliefs, and indeed that it is a core moral concern of the society that people’s liberty not be unnecessarily interfered with. If a State requires a citizen to violate his or her conscience by forcing that person to participate in a war that does not need that particular citizen, the State jeopardizes its legitimacy. The State’s legitimacy comes from its promise to protect and respect its citizens. We have already discussed the promise of protection. We now need to say something of the respect, a minimalist version of which was supported by both Hobbes and Locke. Respecting citizens, especially respecting their liberty, is crucial for the State’s legitimacy since the promise of protection is itself grounded in the idea that the State will not make life worse for the citizen than life would be without the State. Hobbes is sometimes interpreted to hold that protection is sufficient for State legitimacy. But Hobbes clearly says that self-preservation is not mere minimal existence. The Office of the sovereign . . . consisteth in the end for which he was trusted with the sovereign power, namely the procuration of the safety of the people; to which he is obliged by the law of nature . . . But by safety here is not meant a bare preservation, but also all other contentments of life, which every man by lawful industry, without danger, or hurt to the commonwealth, shall acquire to himself.37

The sovereign power is bestowed by the people with the promise that their lives will be protected and that their lives, especially concerning the use of their liberty, will be respected. 37

Hobbes, Leviathan, EW, p. 322; Tuck, p. 231.

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For Hobbes, the sovereign must respect the liberty of the citizens, with the only exception being the use of that liberty that endangers the commonwealth. Locke is even more explicit that the sovereign achieves the trust of the citizens by protecting life, liberty, and estates of the citizens. In these two canonical accounts of State legitimacy we see why it is that the sovereign must, in many situations, allow the citizens to refuse to do that which they find to be contrary to their core values. Again, the only exception is when the State needs the particular citizen to act for the preservation of the State. Those situations are rare indeed. But if the sovereign nonetheless forces the citizens to act contrary to their consciences, the sovereign undermines his or her legitimacy by violating core values of the public conscience. In our examination of Hobbes’s views of conscience and equity we uncovered proto-liberal ideas that have salience today. And we have gained insight that will be useful in understanding the grounding of civil disobedience.

V

Justifying civil disobedience

The classic discussion of civil disobedience was Plato’s account of why it was that Socrates did not escape the death sentence that Athens had condemned him to. In the Crito, Socrates develops the doctrine of “persuade or obey.” In this section I will re-examine this wonderful dialogue, ultimately rejecting the conclusion that Plato puts into the mouth of Socrates. In part I will draw on other things that Socrates said that seem to tell against the “persuade or obey” conclusion of the Crito. The Crito is set in the aftermath of the Apology, where the citizens of Athens have condemned Socrates to death for teaching false gods and corrupting the youth by his teaching. Crito visits his friend Socrates who is in prison awaiting the sign that he will be forced to drink hemlock and die. Crito offers to bribe the jailer and make it possible for Socrates to escape execution and leave Athens. But Socrates refuses and defends his decision by showing that he has a commitment to the city of Athens and its laws that have protected and nurtured him over his lifetime. Much of the dialogue turns on the claim that Socrates will be harming Athens if he disobeys the death sentence that has been imposed on him. Yet, the arguments do not seem to go through, and this will tell us something about the larger case against civil disobedience. Socrates puts the question in just the terms that we have been discussing in this chapter. Here he has the Laws speak and explain why Socrates should not try to escape. Tell me, Socrates, what have you in mind to do. Are you not intending by this thing you are trying to do, to destroy us, the laws, and the entire state, so far as in you lies? Or do you think that the state can exist and not be overturned, in which the decisions

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reached by the courts have no force but are made invalid and annulled by private persons?38

And Socrates goes on to say that this would be true even if the decision by the courts wronged Socrates. In response, Socrates has the laws speak and give their understanding of what Socrates had agreed to when he became a citizen: “Socrates, is this the agreement you made with us, or did you agree to abide by the verdicts pronounced by the state? . . . Come, what fault do you find with us and the state, that you are trying to destroy?”39 Socrates answers that he can find no fault with the way the State has raised and treated him in terms of the provision of his education and the securing of his marriage. The laws then point out that Socrates is acting toward them in ways he would not act toward his parents, yet his “country is more precious and more to be revered and is holier and in higher esteem among the gods and men of understanding than your mother and your father and all of your ancestors, and you ought to show her more reverence and obedience and humility.”40 At this point in the text, we get the famous formula that Socrates proposes as the right way to regard the state. The laws say that you ought either to convince her by persuasion or to do whatever she commands you to suffer, if she commands you to suffer, in silence, and if she orders you to be scourged and imprisoned or if she leads you to war to be wounded or slain, her will is to be done, and this is right, and you must not give way or leave your post, but in war and in court and everywhere, you must do whatever the state, your country commands, or show her by persuasion what is really right.”41

This is the “persuade or obey” position that Socrates thinks is the bargain that we have all made with our State. Notice that Socrates singles out two occasions when one must either persuade or obey, concerning court decisions or the decision to send one to war. And they both can have the same result, namely that the State sends one to one’s death. So, contrary to the discussion of Hobbes earlier, Socrates claims that the State does not have to preserve your life in these situations and that that is the bargain we made in agreeing to be citizens and accepting the benefits thereof. As he has the laws say: “we give him the opportunity and do not roughly order him to do what we command, but when we allow him a choice of two things, either to convince us of error or to do our bidding, he does neither of these things.”42 The argument against civil disobedience turns on two premises in the Crito. First, Socrates is in a different position from other Athenian citizens since he 38 39

Plato, Crito, trans. Harold North Fowler, Loeb Classical Library 36 (Cambridge, MA: Harvard University Press, 1914), p. 175. 40 Ibid., p. 179. 41 Ibid. 42 Ibid., p. 181. Ibid., p. 177.

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never left the city nor expressed dissatisfaction with it. It is my view that this argument does not go through in the end. Socrates may have been different from other citizens of Athens, but this did not mean that he had a stronger duty to obey the law than these other citizens did. For on this argument, those who constantly criticize the laws would have less of an obligation to obey the laws. Yet, all citizens stand equally before the law, with equal rights and also equal duties. Those who are most esteemed may have a greater duty in that they are exemplars for others. But if this is so it is not because esteemed citizens have a greater duty to the laws, but to the populace, and especially to the young. Indeed, this was one of the premises in the argument that Socrates should be dealt with harshly for corrupting the young. Given who he is, Socrates should be acting as an exemplar for the young, but this did not entail that he had greater duties to the laws. Second, again because of who he is, his act of disobedience would be “a destroyer of the laws.”43 This claim has a bit more plausibility to it than the previous claim, but ultimately it does not succeed. Socrates could do more damage to the populace’s respect for laws by his disobedience, given how esteemed he was. People took Socrates more seriously than they did most other Athenians. And so if he broke the law, the citizens would think less well of that particular law than if other Athenians violated that law. But the act of disobedience of a single person could not plausibly be said to destroy the laws. No single person has the power to destroy the laws and even if what one person did led, by a chain of causation, to the destruction of the laws, it would be too difficult to have predicted in advance to hold that person responsible for the law’s destruction. Despite the arguments of the Crito ultimately not succeeding, there are important lessons to be learned here nonetheless. Those who are in positions of esteem like Socrates should act with care when deciding whether to engage in civil disobedience. Just as those held in high esteem can influence law reform for the good, as they obey or disobey a law, they are also well placed to influence their fellow citizens for the bad as well. And because of this fact, those who are held in high esteem should see themselves as more duty bound to act in civil disobedience than other citizens if they believe that a law is unjust. But there is another side to the issue concerning those who are held in esteem. They are in a special position to be able to bring scrutiny upon a particular law by their, often symbolic, act of disobedience to that law. Some, like Martin Luther King or Mahatma Gandhi, saw themselves in just this light and took their responsibility to act in civil disobedience very seriously – risking their lives to call attention to bad laws that the State was not willing to change. In this 43

Ibid., p. 185.

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respect Socrates could have called attention to the injustice of the jury verdicts in Athens, for instance, by acting in defiance of that law. Yet, from the dialogue we come away with the view that Socrates did not disagree with the verdict or with the way the jury reached its verdict. VI

Refusal to obey the law

There are important differences between civil disobedience and conscientious refusal that I wish to explore in this section. The common view has been that conscientious refusal is easier to justify than is civil disobedience, at least in part because of the greater possibility for negative consequences from civil disobedience than from conscientious refusal. The conscientious objector only acts for himself or herself, whereas the civil disobedient claims to act for the society and to motivate that society also to disobey the law in question. Here one could say that the civil disobedient acts in behalf of public conscience whereas the conscientious objector acts only in behalf of private conscience. But there are ways to challenge this common view, and I will examine and respond to these challenges in what follows in this section. Civil disobedience differs from conscientious refusal in that civil disobedience is aimed at changing the law for every citizen whereas conscientious refusal is aimed at creating a singular exception to the law. In this respect, civil disobedience provides a greater challenge to the law than does conscientious refusal. Allowing for a singular exemption may lead to greater challenges to the law, but at the moment it is only the conscientious person who asks for the exemption. Civil disobedience, from the beginning, is a challenge to the law that is broken or otherwise in need of being replaced, or in some cases a challenge to another law that is in some way related to the law that is being disobeyed. In many ways the example of Socrates at the end of his life blurs this distinction. Crito, the friend of Socrates who is the main interlocutor in the dialogue named for him, at one point argues that the sentence that was issued, as well as the way the sentence was reached, was flawed and that for this reason Socrates should not obey the sentence. Socrates could have disobeyed the sentence that he drink hemlock since he thought of himself as exceptional and sought to be exempted from the law, perhaps because of the greater good he could do for the city if he was not executed, or he could have disobeyed as a way to call attention to the unfairness of the law for all citizens of Athens. Kimberley Brownlee has argued, in her otherwise very compelling book, Conscience and Conviction, that we have it all backwards: civil disobedience should be easier to justify than conscientious refusal, at least from the perspective of deliberative democracy.

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The difference between the communicativeness of civil disobedience and the lack of it in personal disobedience signals a further difference in the quality of their conscientiousness . . . to remain silent necessarily casts doubt on the sincerity of our conviction that the conduct is seriously wrong. This is what I call the communicative principle of conscientiousness. The principle lies at the core of my analysis of what counts as “sincere moral conviction.”44

While I find the distinction that Brownlee draws here to be very important I disagree with the conclusion that she tries to draw on the basis of this distinction. One thing that underlies Brownlee’s position that civil disobedience is more easily justified than conscientious refusal is what she calls the universality condition that “holds between our judgments of ourselves and our judgments of others.”45 Yet, in my view, some reasons for action are defensible that would not satisfy the universality condition in that the reasons make reference to highly particularistic features of a person, such as his or her religious or moral beliefs. There are other reasons for such beliefs to be rendered plausible or sincerely held than by virtue of holding for all others. Brownlee does not say that the universality condition requires that a reason be a good reason for all people, but only for those who are similarly situated.46 But religious belief for instance can be so particularized that there are very few if any others who will be similarly situated. Brownlee is right to be worried about those who are free riders or those who are hypocrites. Indeed, it is very hard to test for sincerity of belief given that some people say they strongly hold certain beliefs when they do not do so, and I will address this worry in greater detail in the next chapter. My concern though is that Brownlee has not given sufficient consideration to what it means to be similarly situated. She does address how much weight to give to context-sensitivity, but she seems to ignore person-sensitivity, that is the possibility that a person could have idiosyncratic beliefs that are not held by others and yet are sufficiently important to that person’s moral integrity that the society should respect those beliefs. I would also raise concerns about what Brownlee and others have argued concerning public communicativeness. While I also value communicativeness for the maintenance and growth of a community, I do not see it as having overriding significance in the debates about civil disobedience and conscientious refusal. My view is that some beliefs can be sincerely held and quite private. Of course, it is always legitimate to ask whether the society has an obligation to respect those beliefs, and what specifically a society needs to do to show sufficient respect to the believers. Here we must surely distinguish between beliefs that result in increased harm to others and beliefs that are most likely not going to lead to such increase in harm. 44

Brownlee, Conscience and Conviction, p. 29.

45

Ibid., p. 30.

46

Ibid., p. 34.

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In this chapter I have argued that there is a long tradition, extending at least back to Hobbes, of seeing a distinction between private and public conscience, and of understanding public conscience in terms of something like equity or procedural natural law. This distinction is especially important in understanding the debate about the justification for conscientious refusal as well as for civil disobedience. In a sense, it is when private conscience calls for a person to try to change public conscience that those who enforce the law must be most open to lenience. In times of war, where it is not clear what the lawmaker can legitimately dictate, people must be respected for acting on the basis of their private consciences. And this respect for private conscience is itself grounded in principles of public conscience and equity as limiting the legitimate authority of the State. Public conscience, understood from a plausible Hobbesian perspective, operates as a restriction on what States can do in times of war and concerning the treatment of their own citizens.

12

Selective conscientious refusal

As I explained earlier, in the United States during the Vietnam War, many young adults filed for selective conscientious objector status when they were drafted to serve in the military. They were not opposed to all wars, but objected to the Vietnam War on moral grounds. Some relied, at least in part, on Just War criteria to show that the war was initiated unjustly, since the war was not a matter of US self-defense, and was being waged unjustly as well, especially with the use of such chemical weapons as Agent Orange. Most of them did not consider themselves pacifists since they recognized that a war like World War II might be justified. They did not see that there could be a form of pacifism that fit with their selective refusal to fight. In this chapter I will explain what selective refusal can be grounded in and how it might fit with the emerging theory of contingent pacifism. As I have indicated earlier, contingent pacifists believe that given what is known of contemporary wars and of those likely to fight them, any war in the foreseeable future will not be a just war, and it is quite likely that most wars in the past were also unjust wars. According to this view, those who are drafted or who are asked to volunteer should be counseled to refuse to fight. In the present chapter I will explore the idea that those who have a strong conscientious objection to war should be granted an exemption from service, either those who are drafted or those who volunteer but then realize that the war they are asked to fight is not one they conscientiously can fight. This is not an in-principle objection to fighting in war but one that is contingent on the kind of wars that are likely to be fought and the kind of people likely to fight them. I here wish to explore the relationship between contingent pacifism and selective refusal.1 In the first section of this chapter I briefly discuss two recent cases. In the second section, I begin to set out the case for selective refusal by focusing on why having conscientious objections to a war should relieve individuals from the duty to fight. In the third section, I address various objections to selective refusal by qualifying the account so that it requires a long-standing 1

See esp. May, War Crimes and Just War, chap. 2; and May Aggression and Crimes Against Peace, chap. 2; as well as May, “Contingent Pacifism and the Moral Risks of Participating in War.”

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conscientious position that is grounded in moral reasons, not merely prudential ones. In the fourth section, I consider several US court cases on selective conscientious objection to participation in war, where practical concerns are further developed. In the fifth section, I discuss how the position of the contingent pacifist can be linked with selective refusal. Finally I respond to several objections that have been, or could be, offered to my views. Throughout I offer reasons to favor exemptions to those who are selective conscientious objectors to war.

I

Two recent cases

The topic of this chapter may appear to be dated, since there has not been a conscription draft in the US or other Western democracies for many years. Yet, there have been recent cases that raise similar issues to those raised in the Vietnam era. Recently, soldiers who experience combat, or who come to the realization of what modern war requires, refused to serve or tried to get out of their commitments in Iraq and Afghanistan due to conscientious objections to these wars, but not necessarily to all wars. As a result there is an increasing interest in the issues of conscientious refusal to fight, especially selective conscientious objection.2 Let me briefly discuss two cases here at the beginning of the chapter. First, consider the case of Ehren Watada who initially joined the US Army out of “a desire to protect our country.” He served one year in South Korea and was then reassigned to Fort Lewis, Washington. In preparation to deploy to Iraq with others in his unit he did some research and concluded that the Iraq War was unjustified. As a result, in 2006 he refused to be deployed to Iraq, claiming that the war was illegal. Watada claimed that the President had lied about the situation in Iraq, and hence that there was no basis in international law for this war to be seen as a legal or just war. He also claimed that if he commanded soldiers in such a war he would be guilty of a war crime. He was the first commissioned officer to refuse to deploy to Iraq. Court-martial proceedings were initiated against Watada. The prosecutor claimed that “Lt. Watada betrayed the Army by making his issues public.” During the trial, one of Watada’s superiors testified that Watada said he would rather go to jail than betray his conscience. The court-martial proceedings ended in a mistrial due to procedural irregularities and Watada was eventually released from the military.3 Second, consider the case of Agustin Aguayo who said he began having doubts about participating in the Iraq War shortly after enlisting. In 2004 he applied for conscientious objector status but before his case could be heard he 2 3

Randy Friedman, “The Challenge of Selective Conscientious Objection in Israel,” Theoria, 109 (April 2006), 79–99. Most of the factual information in this paragraph derives from the Wikipedia website entry under Ehren Watada.

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was ordered to deploy to Iraq. He served a year in Iraq during which time he said he refused to carry a gun. After his tour of duty was over, he returned to the military base in Mannheim, Germany. When he was ordered to redeploy to Iraq, he deserted and was subsequently arrested. His conscientious objection appeal was turned down because, as the judge wrote, “Though Aguayo stated that his Army training caused him anguish and guilt, we find little indication that his beliefs were accompanied by study or contemplation, whether before or after he joined the Army.”4 Aguayo was convicted in a court-martial proceeding and sentenced to some jail time as well as dishonorably discharged from the United States military. I present both of these cases as contemporary examples of selective conscientious refusal. Watada and Aguayo did not object to serving in the military in all wars, but only refused to fight in the Iraq War. Indeed, both had volunteered to join the military knowing that there were ongoing wars they would probably be sent to fight. They came to be opposed to the Iraq War only when they learned more about it after initially thinking that they could conscientiously fight in that war. So Watada and Aguayo seem to be good illustrations of those who are selective conscientious objectors today. The question I will pose in this chapter is whether Watada or Aguayo could have availed themselves of the position of contingent pacifism to buttress their claims of selective refusal on conscientious grounds. Many if not most people who have refused to fight in war have been selective conscientious objectors, not those who are opposed to participation in all wars. Yet, the discussion of conscientious objection is often linked to traditional pacifism, where the adherents of this doctrine would not have grounds for opposition merely to one war instead of all wars. As we will see, contingent pacifism is much better suited to supporting some of those who refuse to fight in a certain war but who recognize the possible justifiability of fighting in some other wars. Before continuing our investigation of that view, let us examine why selective conscientious objection should count as a reason to refuse to serve in the military and fight in war or armed conflict. In the previous chapter we explored why a person’s conscientious judgment should be allowed effectively to trump the judgment of the society concerning whether a certain war, or war in general, can be justifiably participated in. I now continue that discussion. II

Selective conscientious objectors

One way to understand how the selective conscientious objector differs from the general conscientious objector concerns the character of the principles normally appealed to. General conscientious objectors normally appeal to religious 4

Most of the factual information in this paragraph came from the Amnesty International website.

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principles that absolutely forbid the use of violence, or some other activity, that rules out participation in war. Selective conscientious objectors do not appeal to principles that forbid violence altogether. But they could appeal to the general principle that violence should not be inflicted on the innocent. Such a principle is sometimes grounded in religious creed, or sometimes grounded in secular moral beliefs. In both cases the principles adhered to will not countenance that the believer serve in a particular war, although the reasons for this position can be either moral or religious. Another type of selective conscientious objector could apply different principles than general conscientious objectors. The moral principles appealed to could be ones that call for nuance in application and are not absolute principles at all, although they could be important principles nonetheless. One such principle is that only violence necessary for averting a worse tragedy should be employed – this is the revised version of the Just War tradition’s principle of necessity. Application of such a principle would mean that the selective conscientious objector is not opposed to serving in all wars, just those that fail the contingent pacifist’s necessity principle.5 Draft boards and military tribunals have had an easier time accepting exemptions from military service for general conscientious objectors than for selective conscientious objectors. Their acceptance of an exemption for general conscientious objectors is based on the view that it is a straightforward violation of religious creed for those from traditional pacifist religions to serve in the military. And especially in the United States, with its strong separation of church and state, political and military officials are reluctant to force people to do that which would be a clear violation of their religious creeds. In addition it is thought to be a violation of a person’s integrity for that person to be forced to do that which is abhorrent and contrary to very deeply held beliefs, as we saw in Chapter 10. But in this latter case the door is seemingly left open for selective conscientious objection since nearly all selective conscientious objection will have this characteristic of being grounded in a concern for the integrity of the self. Selective conscientious objectors have often had a difficult time gaining exemptions from military service because their conscientious beliefs seem to be less integral to their dignity and overall conception of who they are, than do those of the general conscientious objectors. To force someone to do something that person is opposed to is often what is necessary to provide for the collective good. In some respects, the selective conscientious objector resembles the person who says that he or she has made a moral judgment that a particular law should not be obeyed. If the law is in the public interest and if it would be 5

See the excellent essay by C. A. J. Coady, “Objecting Morally,” Journal of Ethics, 1/4 (1997), 375–97.

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difficult to achieve the public interest by allowing exemptions, then granting exemptions could thwart the collective good. Philosophers at least since Hobbes have warned that exemptions based on conscience could ultimately thwart the rule of law, as we saw in Chapter 11. A sovereign ruler really cannot allow people generally to decide which laws they want to obey and which they claim they should have a conscientious exemption from obeying. Seeking conscientious objection from particular traffic laws would generate chaos. Conscience, in this view, is unpredictable and even fickle – open to be manipulated by the one who claims to be caught in its throes. Indeed, in this view conscience is so manipulable that nearly anyone could claim to be conscientiously opposed to nearly any law. And granting conscientious exemptions would create an intolerable situation from the perspective of law enforcement officials in a society. In addition, even if not manipulable, matters of conscience are often seen to be too easy intentionally to mischaracterize when a person does not want to be inconvenienced with having to conform to a law that others in similar circumstances are obeying. It is thought to be harder to mischaracterize what are the tenets of one’s religion than to mischaracterize one’s individual moral beliefs. Religious tenets have a kind of public access, at least for most religions, which seems not to be true of a person’s moral beliefs. Here it is often thought to be especially open for abuse to claim that one’s moral beliefs are so strong that they are of the same stringency and commitment as tenets of religious faith. What draft boards and military tribunals have worried about is that selective conscientious objectors will claim that their consciences will not let them fight when in fact it is merely a calculation of prudence or even a cowardice that is really driving the selective conscientious objection appeal. And it is thought that there is no easy way to test for stringency of moral belief as opposed to religious belief. I will challenge this view in the next few sections. The problems with conscientious objection of the selective variety are exacerbated by the fact that conscience is, as I argued in Chapter 10, deeply connected to a concern for the self and hence sometimes hard to distinguish from simple self-interestedness or even selfishness. And in the case of refusal to fight in war, it is rare that people do not have at least mixed motives, where any normal person would indeed be afraid of going off to battle. Concern for the self is hard to parse in terms of whether its true origins are conscientious or merely self-interested. And if it is difficult to test for sincerity and stringency of belief, it will also be very hard to justify selective conscience-based exemptions to laws or practices that require people to serve or continue to serve in the military. I next discuss some of the ways that these practical objections can be countered even as I recognize that such problems and their solutions need to be taken seriously in order to offset the possibility that obedience to law is undermined by granting fraudulent conscientious refusal exemptions.

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III

Testing for sincerity of belief

One practical problem with allowing exemptions from military service to those who are selective conscientious objectors is that it is open to abuse. In this section I will discuss several ways to make selective conscientious objection more palatable to those who must decide about its sincerity. While it is desirable not to force people to do that to which they are conscientiously opposed, there needs to be some kind of test for sincerity of belief in such cases. Nonetheless, it may still turn out that there are so many people who have sincere conscientious objections to a particular law that the law cannot be enforced. And this may even be true of draft laws, or laws concerning desertion, since it may turn out that many people have sincere and well-grounded moral objections to serving in a particular war. Even so, it is important to rule out those who merely do not wish to be inconvenienced or who are cowardly, rather than those who have sincere moral objections to serving in the military. In considering a test of sincerity of belief, the first and most important thing to say is that any plausible view of conscientious refusal of the selective variety must require that refusal be grounded in a long-standing or otherwise verifiable belief. Without such a showing, it is not clear that being forced to violate one’s conscience will indeed bring on a crisis of integrity. Such a test must allow for a public determination of the sort that occurs when conscientious refusal is grounded in religious beliefs. As I said, it is normally thought that one’s moral beliefs are private matters whereas religious beliefs are linked with tenets of a religion that normally can be ascertained by the public. Yet, it should be noted that religious beliefs are often not completely transparent in terms of public scrutiny and ease of gaining access. Some religions have an enormous amount of arcane texts and practices that while not hidden and in that sense “available” to the public are not often easy to decipher unless one is a member of that religion and has studied the relevant religious texts for a long time. This is certainly true of many of the world’s major religions such as Hinduism, Islam, Catholicism, Judaism, and Buddhism. The so-called peace religions – the Quakers, Mennonites, and Church of the Brethren – may have somewhat less arcane traditions, but the tenets of these religions also may not be easily knowable by the general public. Individual secular moral beliefs often are grounded in texts or practices that have as much public accessibility as do religious beliefs. Consider the person whose moral beliefs have been influenced by the writings of Martin Luther King or Mahatma Gandhi. These texts are as open to public scrutiny and are thus as accessible as religious texts are. Indeed, the more recent are the texts in question the more accessible they are likely to be. Recent philosophical or normative texts are actually quite likely to be more publicly accessible than

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the texts, some quite ancient, of various mainstream religions of the world, including the traditional peace religions. There is though, even in these cases of conscientious belief influenced by accessible secular texts, the question of degree of adherence to the beliefs espoused in these texts. I will address this important issue directly in a moment. But we should note that this is not a problem that is unique to secular as opposed to religious adherents. Many of the adherents of the world’s major religions are really only nominal adherents. So, it is not always easy to infer one’s religious beliefs merely from one’s religious associations. Indeed, this is just as true of adherents of traditional peace religions as adherents of more mainstream religions. It still makes sense to inquire into more than merely which groups one associates with in order to determine sincerity of the belief that not serving in the military is grounded in. For those who claim conscientious objection status on the basis of religious affiliation, although not of traditional peace religions, nearly the same problems occur, and not necessarily worse, in these cases, than for those who are members of traditional peace religions. Consider a person who has been raised a Roman Catholic. One of the tenets of this religion, held for two thousand years, is that some wars are just and can be participated in, and other wars are unjust and ought not to be participated in. If one is a staunch adherent of the Catholic faith, this should provide grounds for selective conscientious objection in a similar way to those who base general conscientious objection on being staunch adherents of traditional peace religions. But there is a potentially important dissimilarity between these cases. A person whose religion dictates non-participation in all wars can easily claim to be opposed to participation in a particular war. But a person whose religion dictates non-participation in only some wars cannot so easily use this as a basis for opposing participation in a particular war, since that war may be justified according to the tenets of that religion. So, there is more needed than merely a showing that one is an adherent of a religion like Roman Catholicism to claim selective conscientious objector status to a particular war. And in the case of the Vietnam War, the US Catholic Bishops Conference made it especially hard to do this by declaring that the Vietnam War was an example of a just war according to Catholic teaching. Some US Catholic bishops dissented from this position, thereby somewhat helping those who tried to get selective conscientious objector status in the Vietnam War. In cases where the selective conscientious objector declares this status on the basis of secular moral beliefs, things get more complicated yet, but not necessarily worse for the claimant. Secular moral beliefs can be as firmly and sincerely held as are religious beliefs. So this is not the problem. Rather the problem comes in proving that one has a firm and sincere secular moral belief that would be violated if one participated in a given war. Also, of course, it will

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matter which moral beliefs one holds, since only some beliefs will support the prohibition on participating in a particular war. To prove that a person has a stable and sincere belief grounded in certain secular or religious moral principles, it is best if there is some kind of a paper trail. Having written an essay or series of letters on the subject of one’s beliefs is perhaps one of the best indications of especially secular moral beliefs. Regular attendance at a certain church that espouses the moral principles in question could also be a good indication of a person holding a stable and sincere belief. A less strong indicator, but still acceptable as a form of evidence, would be the testimony of close acquaintances or family members with whom a person has discussed, over a long period of time, his or her convictions. These were some of the main indicators used by US draft boards in the Vietnam War era. It is interesting to consider cases where the more obvious indicators, discussed in the previous paragraph, do not exist. Consider someone who has come to hold various moral beliefs through a rigorous rational process. Imagine that this person has held these beliefs for several years but has never had occasion to write or speak about them to acquaintances or family members. Assume that this is a genuine case of sincere belief. How can this person’s beliefs be proven acceptable in such a way that fraudulent claims of others are still ruled out? One strategy is for a panel to discuss the person’s views with him or her to try to elicit how firm and sincere the beliefs are. Again this method was often used during the Vietnam War, with a person’s draft board engaging in this inquiry with the claimant. But this strategy is open to many problems, not the least of which is that those who are more articulate, or educated, will have a greater chance of proving their case than those who cannot easily defend their beliefs in a rigorous process of investigation. Additional problems concern bias on the part of the board of inquiry and deception on the part of claimants who are not sincere in the espousal of their beliefs. Yet, it may nonetheless be true that a claimant can present himself or herself as a non-standard kind of pacifist, paralleling the way that general conscientious objectors present themselves.

IV

Legal standards during the Vietnam War

While there have been important legal expansions of the grounds of conscientious beliefs, in my view several court decisions relied on flawed reasoning that I will attempt to identify. In a 1943 Second Circuit Court of Appeals decision, United States v. Kauten, the relevant distinction was characterized as follows: There is a distinction between a course of reasoning resulting in a conviction that a particular war is inexpedient or disastrous and a conscientious objection to participating in any war under any circumstances . . . The former is usually a political objection,

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while the latter, we think may justly be regarded as a response of the individual to an inward mentor, call it conscience or God, that is for many people at the present time the equivalent of what has always been thought a religious impulse.6

This argument is flawed because, as we saw in Chapter 10, for some people the two perspectives, political and conscientious, thought to be opposed, can sometimes merge. In addition, as we have seen and as we will see in the next section, there is a third option, namely the view that is grounded in reasoning resulting in the conscientious judgment that most, but not all, wars should not be participated in. During the Vietnam era, several US Supreme Court cases considered the question of selective conscientious objection to participating in war. The decisions before the 1960s were grounded, as was the 1946 Circuit Court opinion, in the idea that conscientious objectors must base their opposition to serving in war on a belief in a higher authority.7 But in 1963, another US Circuit Court allowed a conscientious objector to claim an exemption from military service because of the dictates of what was termed “Godness” where humans stand to this being in a horizontal rather than vertical relation, making the religious authority not one that is strictly “higher.”8 In 1970, in Welsh v. United States, the US Supreme Court moved even further from demanding a belief in a traditionally understood idea of God when it held: If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war, those beliefs certainly occupy in the life of that individual “a place parallel to that filled by . . . God” in traditional religious persons.9

The Welsh court also explained the general idea behind allowing conscientious objection as follows: “Section 6(j) [of the Selective Service Act] . . . exempts from military service all those whose consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they were to become part of an instrument of war.”10 This standard seems to me to be largely the correct one to use in such cases, but I do think the idea of “no rest or peace” needs to be explicated in terms of conscience rather than merely prudential considerations. And, importantly, it is not at all clear why both selective and general conscientious objectors could not meet this standard in terms of intensity of belief. Indeed, in a 1970 case from the Southern District of Maine, an exemption was granted to a selective conscientious objector who believed 6 7 8 9

United States v. Kauten, 133 F.2d 703 (2d Cir. 1943). See Berman v. United States, 156 F. 2d 377 (1946). United States v. Jakobson, 325 F.2d 409, 412 (1963). 10 Ibid., at 343–44. Welsh v. United States, US 333, 339–40 (1970).

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that any current war, but not necessarily all wars, were unjustified under the Catholic doctrine of a “just war.”11 Yet, the 1971 US Supreme Court case of Gillette v. United States, held that selective conscientious objectors should not be granted the same exemption from military service that general conscientious objectors have.12 This case was primarily decided on the basis of a rejection of an equal protection argument. The claim that was rejected was that it was a denial of equal protection to discriminate against selective conscientious objectors and in favor of general conscientious objectors. Since my object in this chapter is to examine legal theoretic rather than constitutional arguments, I will not rehearse the constitutional arguments in Gillette here, except to note the conceptual arguments seemingly implied by some of the constitutional analysis. The conceptual point that seemed to hold sway in Gillette was that while it might have been unconstitutional for the US government to discriminate on the basis of various strongly held pacifist beliefs, between those that are religiously based and those that are morally based, it was not unconstitutional to distinguish between general and selective conscientious objection. Indeed, the court virtually equated selective conscientious objectors with non-pacifists. This is important since in my view there can be selective conscientious objectors who come to this decision out of sincerely held contingent pacifist moral (or religious) beliefs. I discuss such matters in more detail in the next section. I wish to end this section with a comment on an interesting legal wrinkle in these matters concerning arguments advanced in international law that are relevant to the overall aims in this chapter. It may be that international law prohibits participation in wars that are, or are likely to be, unjust. The injustice could be either because of the non-defensive character of the war itself, or due to the unjust tactics and weaponry employed, as we saw in Chapters 7 and 8. If there is such a prohibition in international law, then there is an obligation not to participate in such unjust wars. This seems to be one of the main lines of argument advanced by Ehren Watada, discussed at the beginning of this chapter. If there is an obligation not to participate, then there also must be a correlative liberty-right not to participate.13 And corresponding to the liberty-right not to participate in certain wars would be a claim of selective conscientious objection against participation in a particular war.14 I take up this issue in greater detail later in Section VI of this chapter. One might wonder though whether either Watada or Aguayo could meet the standard I set out earlier of having a long-standing or otherwise verifiable belief 11 12 13 14

United States v. Berg, 310 F. Supp. 1157 (SD Maine 1970). Gillette v. United States, US 437 (1971). For a fascinating discussion of these issues see William V. O’Brien, “Selective Conscientious Objection and International Law,” Georgetown Law Journal, 56 (1968), 1080–131. Also see Reader, “Cosmopolitan Pacifism.”

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that led to their selective refusal. In both cases, there was initially a belief that the ongoing wars were ones that they could participate in. So there was not a long-standing belief that the Iraq War was unjust. What Watada and Aguayo could have shown, from a contingent pacifist perspective, was a strong conscientious belief that most wars were not just and should not be participated in. From this perspective, they could show that there was evidence that they were opposed to most if not all foreseeable wars. I do not know whether either of them did hold such beliefs or could prove it. But if they did, then it could be that their assessment of the contingencies changed to such an extent that they now did not see the Iraq War as an exception to their general belief that wars were not justifiable today. The legal standards and principles that I have considered in this section are meant only to give a somewhat different take on the problem I addressed earlier. The idea is that courts in the US have struggled with the topics we have been examining, at certain times accepting and at other times rejecting the claims of selective conscientious objectors. In the debates about the disposition of these legal cases, one of the salient concerns has been whether secular moral belief can rise to the level of being a sufficiently conscience-driven objection so as to make it inhumane for the government to force the objector to participate in war, and whether or not the objector’s claims can be publicly verifiable. As we will next see, contingent pacifism seems to be especially well suited for those who declare selective conscientious objector status.

V

Contingent pacifism and selective refusal

The difference between general and selective conscientious objectors mirrors the difference between traditional and contingent pacifists. Traditional pacifists appeal to universal moral principles against inflicting violence on other humans, or on the killing of the innocent. Contingent pacifists also appeal to moral principles such as the principle against killing the innocent. But the application of this principle is contingent on certain facts being true, and may have a different application if other facts obtain, allowing for overriding considerations in some cases, especially in cases of necessity and emergency.15 In this sense the principles may be the same but the difference between types of conscientious objector has to do with the scope of application of the principles. Contingent pacifists can apply the same moral principles as traditional pacifists. Yet, contingent pacifists find the application of these principles sometimes, at least 15

See Daniel Statman, “Supreme Emergencies and the Continuum Problem,” Journal of Military Ethics, 11/4 (December 2012), 287–98; and William Lund, “Reconsidering Supreme Emergencies,” Social Theory and Practice, 37/4 (October 2011), 654–78.

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hypothetically, to justify war, whereas traditional pacifists make no exceptions in applying their moral principles.16 As I have used this term throughout the book, contingent pacifism is the pacifist view that whether war is justified is a matter that is contingent on certain facts. The contingent pacifist believes that given what we know of how contemporary wars are likely to be fought, and of how political leaders are likely to fight these wars, wars will not be justifiable into the foreseeable future. And it is also true that wars in the past were very unlikely to be just wars as well. The burden of proof thus falls upon those who support a particular war to defeat the presumption of the contingent pacifist. The presumption has shifted today because of certain facts about the character of contemporary war and armed conflict, as well as considerations of global politics, and a reframing of the principles of proportionality and necessity, that I outlined in previous chapters. In this view, we should start from and constantly return to placing strong value in pacifist attitudes. War then becomes a last resort, not a first resort, or even a penultimate resort. One type of contingent pacifist is the so-called “just war pacifist.”17 Such a pacifist does not hold to a principle such as the prohibition on inflicting violence on other humans. Instead, these contingent pacifists hold to a principle that is much more nuanced, such as that the infliction of violence can only be justified if it is necessary for achieving a proportionately greater good. But unlike traditional Just War adherents, the Just War pacifist believes that the principles of proportionality and necessity are very strong principles, and that there are not now and will not be any such cases, at least for the foreseeable future, given certain facts about contemporary war and those people who will wage them. So the waging of war is contingently unjust. If one is a contingent pacifist, one can recognize the possibility of a war that it might be just to fight, such as World War II. Yet since no contemporary wars are now recognized to be like World War II, this version of pacifism is not as fraught with the practical problems we saw above, where one objected only to serving in a current war. And this is true whether one thinks that contingent pacifists really are “pacifists” in the true sense of the term, or merely Just War theorists who have taken the Just War position to what they believe to be its logical conclusion.18 The position based on the judgment that wars now, and into the foreseeable future, are unjust, may or may not be properly called pacifism. 16 17

18

See McMahan, “Pacifism and Moral Theory.” See Crookston, “Strict Just War Theory”; Sterba, “Reconciling Pacifists and Just War Theorists”; and George Lucas, Jr., “From Jus ad Bellum to Jus ad Pacem,” in May, Rovie, and Viner (eds.), Morality of War, pp. 369–80. Also see Aleksandar Jokic, “Against Anti-War Pacifism,” Sociological Review, 33/1–2 (2000), 43–68. See Brian Orend, “A Just War Critique of Realism and Pacifism,” Journal of Philosophical Research, 26 (2001), 435–77.

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But whatever this set of beliefs is called it can play a major role in grounding selective conscientious refusal. Contingent pacifism is not prone to the objection that it is really just a pretense for politically or personally judging that a particular war should not have been entered into,19 rather than a conscience-based objection that is deeply grounded in the “individual’s inward conviction of what is morally right or morally wrong.”20 If one subscribes to contingent pacifism it is easy to see that one has a conscientious basis for objecting to participation in a particular war, since such a belief is grounded in the larger objection against serving in nearly all wars. And because of this, believing in contingent pacifism is not at all similar to someone who is conscientiously opposed only to a particular war, with its attendant practical worries about insincerity of belief. Indeed, a draft board or military tribunal that is inquiring into sincerity of belief should be easier to convince if the person refusing to serve grounds his or her objection in contingent pacifism rather than in a moral objection only to this particular war. Believing in contingent pacifism is perhaps not as free from worries about sincerity of belief as is belief in traditional pacifism. But both of these forms of pacifism have in common that they ground much more than an objection to participation in one particular war. And from our earlier considerations about the court cases on selective conscientious objection, one can see that someone who declares selective conscientious objection grounded in contingent pacifism will be highly likely to have a conscientious objection to war that extends forward as well as backward in time and hence does not look like a pragmatically driven belief reached merely concerning current circumstances. Indeed, there is a strong connection between selective refusal and contingent pacifism, where there is so much overlap and mutual support that it is almost as if the two views were made for each other. John Rawls made just this connection in an often-overlooked passage in A Theory of Justice. He said: a form of contingent pacifism may be a perfectly reasonable position: the possibility of a just war is conceded but not under present circumstances. What is needed, then, is not a general pacifism but a discriminating conscientious refusal to engage in war in certain circumstances.21

Here Rawls discusses but does not develop the main point I have been defending in this book. Traditional pacifism and general conscientious objection fit well together because of the link to absolute moral principles inspired by certain religious creeds. Contingent pacifism and selective conscientious objection also fit well 19 20 21

See Alexandra, “Political Pacifism.” See Kent Greenawalt, “All or Nothing at All: The Defeat of Selective Conscientious Objection,” Supreme Court Review, 1971 (1971), 34–94 (58). Rawls, A Theory of Justice, pp. 381–82.

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together. The revised Just War principles of contingent pacifism, such as necessity and proportionality, are not absolute moral principles but ones that are premised on the idea of a lesser evil. For over a thousand years, pursuing the lesser evil meant that some wars were considered justified, and in some cases young adults were even morally required to fight in those wars. Now, though, some people who have been strongly inclined toward the Just War tradition have seen that the lesser evil is not that war should be fought but that it should not be fought in nearly every conceivable case, despite the fact that there might be some rather serious moral wrongs in not fighting these wars. Just War theorists today sometimes do subscribe to a selective conscientious refusal to fight in some wars. In this sense, as well as several other important senses, some Just war theorists hold similar views to contingent pacifists. Indeed, one of the points of this book is that Just War theorists should be more receptive to contingent pacifism than they would normally be. The point of the current discussion is to show that in many cases contingent pacifism connects better with selective conscientious refusal than does traditional absolute pacifism or traditional Just War theory. Concerning the cases I began this chapter by discussing, we might also note that human rights law strongly endorses a right to conscience. Already in the Universal Declaration of Human Rights, in Article 18 we find the right to freedom of conscience. And while there is some controversy about whether this right extends to cover the right to refuse to kill, a strong argument can be made to include this right as falling under Article 18, especially given the strong pacifist promise of the UN Charter, as I argued in Chapter 7. So, there is not only support for contingent pacifism in international law but also support for selective refusal. One final consideration in international legal theory concerns justice at the end of war. In the last century, the conditions of justice of initiating and conducting war were thought to be relatively easy to meet. If the war was one fought with a just cause as a last resort and the tactics were ones that satisfied the conditions of distinction (or discrimination), necessity and proportionality, the war could be a just war. But recently, considerations of justice at war’s end have complicated these calculations in favor of forms of contingent pacifism. I will now continue an argument that was begun in Chapter 9. Post-war justice calls for, among other things, a consideration of the exit strategy of war or armed conflict. As I have argued in my book After War Ends, such issues as reconciliation, reparations, and rebuilding take center stage in post-war reflections.22 But if wars need to meet such post-war conditions as reconciliation in order to be, all things considered, just wars, there will be far 22

May, After War Ends. I present a defense of jus post bellum principles not as lex lata but as lex ferenda.

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fewer just wars than is normally assumed. Indeed, it is hard to imagine many wars in the foreseeable future, as well as those in the past, that meet post-war justice conditions. The current wars in Iraq and Afghanistan do not seem to meet these conditions given the clear lack of any exit strategy linked to providing a clear path to a just and lasting peace in those two countries. Indeed, as I write this Iraq is now once again a major battlefield at least in part because the war fought just a few years earlier was never ended justly. Because of the above considerations, international legal concepts can be seen to support contingent pacifism, since participation in any war today is highly problematic. So, young adults trying to decide whether to leave the military, as was true of Agustin Aguayo, or young adults faced with a conscription draft, would have strong reasons grounded in international legal theory, as well as reasons grounded in morality, not to serve in a war today. As I have indicated, contingent pacifism rules out contemporary participation in war. And so, somewhat like the adherent of a traditional peace religion, adhering to contingent pacifism, or that variant supported by international legal theory, can be used to support the claim that one should be granted an exemption of selective conscientious objection in every contemporary war, assuming that one’s belief in contingent pacifism is sincerely held.

VI

Objections

The view of selective conscientious refusal to fight in war that I have sketched in this chapter is open to several objections that I will now take up. First, it might be objected that it is too hard to tell, merely through the means of probing discussion, whether a person holds a sincere conscientious belief for this discussion to be used as a test of whether a young adult should get an exemption from fighting in the military. Not only will the glib and educated have an unfair advantage in this test, but so will those who are good at telling lies or at least twisting the truth. In any event, the test is too easily manipulable to be a reliable test for sincerity of conscientious belief. One kind of response is to begin by pointing out that lawyers, especially those who are good at cross-examination, often seem to be able to tell when a person is lying merely by asking probing questions. There will undoubtedly be cases of people who fool their inquisitors. But this is true for any test, even for a test that looks merely to what moral or religious creed one grew up believing, and whether one is still a believer. The question is not whether there will be people who fool the system, but how many are likely to do this compared to other tests that are available. So, the mere fact that the test is not foolproof is a poor reason to think that the test is not a good one. When religious objections are discussed, it is common in the United States to advert to the principle of

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reasonable accommodation. I would propose a similar principle for the nonreligious cases we are considering here.23 Second, it might be said that I have put too great a weight on the judgments of conscience over what is good for the society as a whole. Judgments of conscience are no better than judgments of taste. They do not tell us anything other than what a person believes or prefers at the moment, hardly a good basis for exemption from military service at a time when a person’s nation might need him or her. Conscience is not necessarily a good judge of what is right by either objective or subjective standards. Indeed, it is quite odd to think that one person’s judgment could be definitive for what is right in a way that could justify overriding what the society at large thinks. Conscience can display the collective good, as we saw in our discussion of the relationship between private and public conscience in Chapter 11, but it is true that this does not necessarily happen in all cases. And it is also true that conscientious judgments should not always be seen as overriding what the society judges to be best for all of its members. If the majority of a society believes that a certain member must serve in the military for the good of the society, then there is indeed a conflict if that member refuses to serve on conscientious grounds. Of course, someone forced to serve in the military is not going to be the best soldier, and so this should be calculated into the mix when ascertaining whether someone’s conscientious judgment should be overridden. Third, it might be objected that there are wars at the moment that are so clearly justified that we should not allow contingent pacifists to act as if no contemporary wars can satisfy the criteria of the Just War tradition. Wars of selfdefense still exist as do wars that must be fought to prevent an innocent State from being subjugated by another State, or a people from being subjected to genocide. And it is also not clear why it is thought to be inconceivable today that States could fight wars justly. This objection goes to the heart of the question of whether or not contingent pacifism really is a form of pacifism. Why think that as a contingent matter there are no wars today even conceivably to be called Just Wars? In the end, all the contingent pacifist can say is that he or she judges that war in the foreseeable future will not be justifiable, as well as that those wars in the past were not likely to be justified either. Such judgments are based on reasons having to do with innocence, proportionality, and necessity as I have argued extensively in earlier chapters. And we can be justified in saying that it is highly probable that wars today will fail to satisfy the conditions of a Just War, in initiating, conducting, and ending war. Throughout the previous chapters I have also provided arguments for contingent pacifism from the perspective of each of these considerations. In my view one must be open to the possibility 23

I am grateful to Mathias Thaler for this analogy.

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that a war could be just today. But because the likelihood is so low, I need not change the advice to young adults about whether the moral risks of fighting in a contemporary war are worth it. And given this calculation, then it makes the most sense also to endorse an exemption for those who have a selective conscientious objection to fighting in wars today.24 I end with a caveat. If a contemporary soldier forms the conscientious judgment that he or she should refuse to fight after experiencing battle, and decides to leave the military, there is at least one issue that needs to be addressed. Those who are in the midst of battle have very strong associative duties to their comrades, who may depend on them for their very lives. Deserting from combat, even on highly laudable moral grounds, should be restricted so that one’s comrades do not suffer thereby. My view is that there must be a waiting period – soldiers should not leave an active military unit unless there is a low risk that their leaving will cause suffering to their comrades. What this will normally mean is that the soldiers who become convinced not to fight during battle will have to wait until the battle is over, or replacements have arrived, before they are relieved of their associative duties to their comrades that they voluntarily incurred by initially joining the military. I have defended the Just War position for many years and find it hard to let go of it completely.25 The specter of World War II is hard to ignore. Perhaps there will be the need for another war like that one yet in our lifetimes. Or perhaps there will be a lesser war that nonetheless truly needs to be fought in the foreseeable future. I cannot rule this out. But since I nonetheless believe that no war in the foreseeable future is likely to be just, I support contingent pacifism as a ground for selective conscientious refusal to fight. 24 25

See May, “Contingent Pacifism and the Moral Risks of Participating in War.” But see Fiala, The Just War Myth.

13

Final thoughts and conclusions

Those who have experienced combat often have decidedly mixed reactions. On the one hand they find that war is awful and they become some kind of pacifist, often something very close to a contingent pacifist as I have set out that view. But on the other hand they often say that fighting in war was the best experience of their lives, something they would not want to have missed. How can these very different reactions to the experience of combat be both found in the same person who has personal experiences of war and armed conflict? Until very recently the experiences of men and women during war varied quite a bit – since women generally were not allowed to participate directly in battle. But even within each gender group the experiences could be radically different as well, as we will see in the highly conflicted way that J. Glenn Gray talks about being a warrior. And even in Virginia Woolf’s case, where she is steadfastly critical of the reasons men have to take their countries to war, she acknowledges that her reaction is not the only one that members of her gender have to war – in fact she is highly critical of the reactions that many other women often have to war insofar as they provide unqualified support for the men who fight it. In this final chapter, I will consider some experiential accounts of war and resistance to war as a way to flesh out some of the views I have defended in this book. I will be especially interested in J. Glenn Gray’s thoughts as recorded on the battlefield in his book, The Warriors, and Virginia Woolf’s remarks about how women and their communities are affected by war in her book, Three Guineas.1 Then I will draw out some conclusions from my analysis of their remarks that will elucidate the main lines of argument I have developed in the book. I

Differing experiences of war

J. Glenn Gray has written movingly about very different reactions he had to serving in combat, ultimately identifying three positions that soldiers take toward their experiences. 1

I thank Penny Weiss for steering me to Virginia Woolf’s text.

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The combat soldier who refuses to yield to abstract hatred in forming an image of the enemy is accordingly isolated and lonely on a modern battlefield. Often he will wonder why he did not yield to earlier impulses and declare himself a pacifist and conscientious objector to the senseless cruelties of warfare. Since an absolutist position is overwhelmingly popular in wartime, he is quite certain that if a choice must be made, he belongs to the absolute pacifists as opposed to the apostles of total destruction. Yet he feels himself opposed to both extremes. Normally, he believes enough in the rightness of his country’s cause and wrongness of the opponent to fight and give his life if need be for that conviction. That many innocent victims must suffer and die as a consequence of the struggle for a limited justice is for him an ancient lesson of history with which he can cope in some fashion. It is not the suffering and dying that sickens him so much as it is the brutalization of the emotions and the corruption of the heart which prolonged fighting brings. I could not escape it: I know that I hate my work in this war, that the war itself is slowly attempting to destroy all that I hold jealously as my own . . . Formerly I tried to be mild and kind, now I interrogate the miserable civilians and take pride in sternness and indifference to the pleas. Perhaps the worst that can be said is that I am becoming a soldier . . . Somehow I have grown quite hard in the past months . . . God in Heaven, help me to keep my humanity . . . 2

The last words (in italics) are taken from Gray’s war diary compiled while in combat during World War II. He seems to speak for many who find themselves deeply conflicted by the experiences of war. Earlier in his book, Gray discussed what he called “the enduring appeals of battle.” Among many very disconcerting things, he recounts that: “thousands of youths who never suspected the presence of such an impulse in themselves have learned in military life the mad excitement of destroying.”3 In addition, there is the feeling of solidarity as well as the demonstration to oneself of “the capacity for self-sacrifice” that is experienced in such a way that it becomes “their final argument for the necessity and ultimate morality of war.”4 The solidarity and selflessness of soldiers imparts at least a rudimentary morality to their profession. It is important to acknowledge this, especially for pacifists. Indeed, it seems to me that pacifists have gone astray when they have blamed or criticized soldiers for going to war, rather than merely counseling them to think more about what it will be like to serve in combat. Pacifists should not see themselves as opposed to those who become soldiers since, at very least, soldiers who return are some of the people most receptive to pacifism. The experience of fighting in war provides reasons to be a pacifist, at least a contingent pacifist, which are very hard to refute. One other common experience among those who fight in war is the worry that for all of the heady triumphalism of winning battles, in the end people will 2 3

J. Glenn Gray, The Warriors: Reflections on Men in Battle (New York: Harcourt, Brace, Jovanovich, 1959), pp. 163–64. 4 Ibid., p. 48. Ibid., p. 52.

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judge that all of the heroic camaraderie was simply wasted. Gray, discussing his World War II experiences,5 puts this point well at the end of the first chapter of The Warriors: The deepest fear of my war years, one still with me, is that these happenings had no real purpose. Just as chance often appeared to rule my course then, so the more ordered paths of peace might well signify nothing or nothing much. This conclusion I am unwilling to accept without a struggle; indeed I cannot accept it at all except as a counsel of despair. How often I wrote in my war journals that unless that day had some positive significance for my future life, it could not possibly be worth the pain it cost.6

Despite the “enduring appeals of battle,” war had to have a point, a purpose, for the suffering that war causes, both to soldier and civilian, to be worth it. It is at this point that the contingent pacifist enters the picture and raises the question of whether it is likely that political rulers will only send soldiers into battle when the gains will clearly be worth it. I discussed this point under the label of the “moral risks of participating in war.” There are undoubtedly gains even of a moral sort to nearly all participation in war. But the question is whether these gains are likely to be outweighed by the suffering and death that war causes. In the Just War tradition it is not often that the suffering and death of soldiers is given its due, for if these factors are honestly considered the ultimate worth or value of war is difficult to see in nearly every war.7 And it is my view that the suffering and death of soldiers must be at the forefront of the calculation of whether wars are worth fighting. And pacifists especially should be the ones at the forefront of arguing that the lives and rights of soldiers should not be dismissed or discounted. I see contingent pacifism as driven by a soldier-focused perspective, not opposed to that perspective. And I am encouraged by accounts like that of J. Glenn Gray, based on the experience of war by those who fought them, that war is so morally problematic today as to make it not a good bet for those who do not want to be in despair after returning from war. At the moment, returning troops from the Iraq and Afghanistan wars are experiencing high rates of psychiatric problems as well as high levels of suicide. These factors must be taken into account both by politicians and military leaders who contemplate taking young men into battle, as well as by these young men who must decide whether to accept the call from their leaders and take the risk of fighting in morally uncertain wars. This is yet another post-war justice issue that could support contingent pacifism as well. 5

6 7

We should note that Gray is here addressing the war that many Just War theorists say is the paradigmatically just war. That he finds his experience in that war to be a matter of despair is telling for the contingent pacifist. Ibid., p. 24. See Coady, Morality and Political Violence, chap. 9, “The Immunities of Combatants.”

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While J. Glenn Gray writes of the experiences of men in battle, Virginia Woolf, writing just a decade before Gray wrote his war journal, explores the experiences of women who stayed behind and have largely not participated in battle.8 She says: For though many instincts are held more or less in common by both sexes, to fight has always been the man’s habit, not the woman’s. Law and practice have developed that difference, whether innate or accidental. Scarcely a human being in the course of history has fallen to a woman’s rifle; the vast majority of birds and beasts have been killed by you, not by us; and it is difficult to judge what we do not share.9

Woolf does not disagree with Gray’s claim that war is of enduring appeal to some people, she only disagrees about his inference that this is true of all people. “Here, immediately, are three reasons which lead your sex to fight; war is a profession; a source of happiness and excitement; and it is an outlet for manly qualities.”10 Just as women have been historically excluded from the other professions, so they have been excluded from the profession of fighting and so do not have experience of the attraction of war that men do. The other side of the experience of war, that Woolf addresses, concerns those who do not fight but are nonetheless deeply affected by war. These civilians often know another side of war, what war does to communities. In a sense war will only end as an institution when it is no longer supported by the other institutions of life. This is one of the main themes of Virginia Woolf’s book Three Guineas, to which I again turn for a sense of this dimension of the experience of war. Woolf writes in the period between the First World War and the Second. She sets herself the task of responding to a plea from a pacifist group that wants advice about how to prevent the next war. She finds herself constantly drawn to reflect on the rest of society in order to understand how it might be that the institution of war can be eliminated. Here she discusses what the duties are of women, as those who do not fight but are nonetheless often encouragers of those who fight. The first duty to which they would bind themselves . . . would be not to fight with arms . . . Next they would refuse in the event of war to make munitions or nurse the wounded . . . the next duty . . . is, briefly, not to incite their brothers to fight, or to dissuade them, but to maintain an attitude of complete indifference.11 8 9 10

As of the time that I write these words, the US has just announced that some women will, eventually, be allowed into combat operations. Virginia Woolf, A Room of One’s Own and Three Guineas (Oxford University Press, 2000), p. 158. 11 Ibid., p. 310. Ibid., p. 160.

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Woolf’s experience leads her to see how wars are sustained by the support of the larger society. And to prevent war will take an effort from that society. Notice, though, that she does not say that from her pacifist perspective women should blame the men who go to war. Woolf also gives rather specific advice about what women in particular need to do in order to disrupt their culture, so much of which supports war: She will bind herself to take no share in patriotic demonstrations; to assent to no form of national self-praise; to make no part of any claque or audience that encourages war; to absent herself from military displays, tournaments, tattoos, prize-givings, and all such ceremonies as encourage the desire to impose “our” civilization or “our” dominion upon other people. The psychology of private life, moreover, warrants the belief that this use of indifference by the daughters of educated men would help materially to prevent war. For psychology would seem to show that it is far harder for human beings to take action when other people are indifferent and allow them complete freedom of action, than when their actions are made the center of excited emotion . . . that is the duty to which outsiders will train themselves in peace before the threat of death inevitably makes reason powerless.12

For Woolf, war will lose a lot of its appeal if the members of society, especially women, will not encourage and applaud the soldiers. There is a sense in which Virginia Woolf’s account of what must happen for war to end is similar to that with which we began, namely, the views of Tertullian. Tertullian argued that it was not enough for men to refuse to fight – in addition they must refuse all trappings of military service. And this would lead to refusing all outward displays of obedience to civil authorities. Here in a strange way, Tertullian and Virginia Woolf, separated by nearly two thousand years, as well as by the great divide between their genders and ideologies, similarly see the way out of the predicament of how to end war, given that it is supported by nearly all social and political institutions, It will be interesting to see whether the inclusion of women in the profession of fighting, as in the other professions, today will change things and make Gray’s analysis more relevant than Woolf’s. What these authors share though is perhaps more important than what they do not. In both accounts of war, there is a deep suspicion that people are drawn to war by their leaders without a proper concern for the risks of suffering and death that war inevitably involves. This worry has also been at the background of my presentation of the case for contingent pacifism. I have provided arguments for contingent pacifism grounded in a respect for the rights of civilians and of soldiers who often both hate and love war at the same time. I will now summarize just a few of the main conclusions I have attempted to establish. 12

Ibid., p. 314.

Final thoughts and conclusions

II

255

Some conclusions

In the chapters of this book, I have made the best case I can in favor of contingent pacifism. I have focused on three areas of scholarship where support for contingent pacifism seemed to be most fruitfully pursued. The first of these areas of scholarship is the Just War tradition, especially in its most recent revisionist form. Soldiers are increasingly cautioned that they must avoid serving in an unjust war. Yet, it is often very difficult for a young adult to discern what are the true aims of a war are, or to distinguish true motivations from mere pretexts. It is also very difficult for a soldier today to ascertain what targets are legitimate in an increasing atmosphere of asymmetric wars that are unlikely to be waged on traditional battlefields or against uniformed soldiers of an enemy State. When the cautions not to participate in an unjust war are linked to the uncertainty about the character of most reasons to go to war and most decisions about tactics, it becomes quite morally risky today to serve in war. And the arguments from the Just War tradition, including what counts as a proportionate and necessary war, are hard to satisfy. When we consider Just War criteria, appropriately revised, we see especially powerful arguments. When we recognize that all war violates the human rights of many people, it is increasingly hard to justify war in terms of what will outweigh such serious moral concerns. Indeed, it is when human rights concerns are added to traditional Just War theory’s perspective on war that it becomes so clear why war today cannot be justified. It is also important that the ancient principle that innocent life should not be taken remain the cornerstone of a just war. Yet, it seems as if many if not most soldiers are innocent, as is true of most civilians as well. The paradigm case of young children, who are some of the most likely to be killed in war, needs to be especially considered. Those who kill them cannot escape having the blood of innocents on their hands and this then causes difficulties for all those who participate in contemporary wars. It is here that a concern for the lives and experiences of soldiers, that J. Glenn Gray so wonderfully recounts, speaks against the institution of war, at least in our contemporary times. Such arguments are not meant to be conclusive in favor of contingent pacifism, but to make those who support the idea of Just War take pacifism more seriously than it is often taken. Secondly, in contemporary international legal scholarship contingent pacifism is getting strong support as well. Here there are arguments concerning the initiation, conduct, and ending of war that support contingent pacifism. The UN Charter can be read as nearly a contingent pacifist document concerning the initiation of war in the way the UN Charter sought to outlaw the initiation of war as we had known it. An exception is made for wars fought in self-defense, but as we saw there are many restrictions even on this recourse

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to armed conflict. The UN Charter contains a strong promise of contingent pacifism. The strongest arguments come from the branch of international humanitarian law. Here there are increasing intrusions from human rights law into international humanitarian law. Human rights law puts a high priority on the defense of the right to life of all persons. Humanitarian law was primarily concerned with civilian, not with combatant, lives. As human rights concerns are brought into discussions of armed conflict it becomes difficult to justify most tactics, strategies, or weapons given that they seem to violate the human rights of both combatants and noncombatants. I have focused on the lives of soldiers, arguing that there is a right not to be killed unnecessarily that is a bar to the conduct of most wars. And in the emerging field of post-war justice there is concern that wars need to be initiated and waged with a view toward an ultimate return to peace through reconciliation and reparations. It is hard to see how war would normally advance such reconciliation compared to the use of diplomacy and other nonviolent means of dispute resolution. The way that we understand justice after a war ends is crucial for the return to a just peace that all agree is the aim of any legitimate war. Yet, today’s geopolitical environment does not favor the means of dispute resolution that would be likely to end in a just peace. Today few wars really end at all – they merely simmer for a while and boil up again in the not too distant future. Thirdly, I argued that the right to conscience is such that at very least exemptions need to be made available to all those who are conscientiously opposed to serving in a particular war, even among those who initially volunteered to serve. Respect for conscience is respect for a person’s core beliefs. And even during times of war, the State’s legitimacy rests on not unnecessarily interfering with the liberties of the citizenry. The State is rendered illegitimate when it forces its citizens to fight in wars that these citizens are conscientiously opposed to. The State needs to make allowances for those who oppose its laws on principled grounds, and this has been recognized by many of the leading philosophers over time, including Socrates, Plato, Aristotle, Grotius, Locke, and even to a certain extent Hobbes. Allowing civil disobedience against laws that are considered immoral or against policies that lead people into immoral acts, is the hallmark of a society governed by the rule of law.13 The public conscience of the society must take account of the private conscience of the individual citizens who live within that society. Conscientious refusal to serve, or to continue to serve, in the military need not be extended to all citizens in all wars. Yet, today there are many reasons for such 13

See Jovana Davidovic, “The International Rule of Law and Killing in War,” Social Theory and Practice, 38/3 (July 2012), 531–52.

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appeals to be granted. I have faced this problem in my own life as have many young men in recent times. The test of sincerity of belief must be constructed and administered fairly. But there are ways for administering such a test that can still distinguish cases of mere cowardice or selfishness from those whose core beliefs are offended by the idea of serving in a particular war. Selective conscientious refusal fits especially well with contingent pacifism and seems to be a highly plausible position for an individual to support and for the State to take seriously. Traditional pacifism was a doctrine that for many people seemed to go too far – the inability to recognize any cases of a just war, or to see that current times and leaders could change radically in the future, were some of traditional pacifism’s chief faults. In addition, it seemed that traditional pacifists were unsympathetic and even uncharitable toward those who chose to do what they believed to be their patriotic duty. Traditional pacifism, or at least its caricature, was an uncompromising position that elicited outrage. In this book I have attempted to defend contingent pacifism, a view that recognizes the possibility of a just war, but not at the present or into the foreseeable future, and sees wars of the past as highly unlikely to have been just wars. And contingent pacifism seeks to counsel young men and women about the moral risks of participating in contemporary wars. In the end contingent pacifists hopefully will have a better reception in the debates about war and peace than was true for traditional pacifists, especially because of the strong defense of the rights of soldiers that is a cornerstone of the version of contingent pacifism I have defended in this book. Historically, as well as often today, the mention of the doctrine of pacifism tends to be a conversation stopper. Those who come from military families or who consider themselves patriotic, feel that they have nothing to say to someone who takes an absolutist position like pacifism. But there is more to it than this reaction – there is something visceral in the response by many people who reject pacifism out of hand. One might expect that the conversation in the middle of this book on the value of the lives and rights of soldiers would give contingent pacifists and those who have served in the military some common cause. Indeed, this does sometimes happen, as we saw in the case of J. Glenn Gray. But more commonly the mere use of the term “pacifism” does not result in anything that could lead to common cause between soldiers and those who resist military service. And yet some of the best “pacifist” arguments have been made by those like my grandfather who have experienced combat. Perhaps then it is better not to use the term pacifism at all – yet that would be intellectually dishonest. I have been slowly moving to accept the framework of contingent pacifism over the Just War framework. The frameworks are to say the least similar. But as Erasmus and others have pointed out, the Just War theorists have not always

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been faithful to their own principles. And some of the principles, such as the principles of necessity and proportionality, are understood differently than they are today in Just War theory. Yet, despite some of these differences about how to understand the canonical principles in the Just War tradition, contingent pacifism and contemporary Just War theory are considerably closer to each other than either is to traditional absolute pacifism. One of the goals of this book has been to address people who support the Just War, and to try to get them to see that they should be more accepting of the plausibility of at least one form of pacifism, contingent pacifism. I end by urging my readers to consider again these debates that have spanned the millennia. At very least, anyone attracted to the Just War tradition or to recent developments in international law, as well as those who are actually faced with often highly personal conscientious decisions about what to do when called to serve in war, need to take very seriously the relatively new position of contingent pacifism. Support for the idea of a just war is not incompatible with accepting the plausibility of contingent pacifism. And in any event, we should all counsel young men and women to be reluctant to follow their leaders into war, no matter how enduringly appealing it may seem.

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Index

actus reus, 129 Adkins, Arthur, 112, 114 Afghanistan war, 189, 234, 247 Aguayo, Augustin, 234, 235, 242, 247 al Qaida, 54 American Society of International Law, 173 Aquinas, Thomas, 209 Aristotle, 216, 256 Nicomachean Ethics, 215 Augustine, 4, 5, 8, 58, 59, 60, 69, 85, 87, 259 Bellamy, Alex, 54, 259 Bennett, Jonathan analysis of Huckleberry Finn, 197, 201–04 Broad, C. D., 200 Brownlee, Kimberley, 230, 231 Chamberlain, Neville, 194 charity principle of, 107, 184 children child soldiers, 71, 178, 180 innocence of, 71 Cicero, 4, 5, 6, 163, 216, 260 civil disobedience, 204, 213, 215, 217, 225, 227–32, 256 civilian casualties, 48, 57, 68, 76, 107, 173 death, 48, 55 lives, 105, 256 rights, 70, 85, 105 risk, 47, 50, 55, 61 Coady, Tony, 102 combatants identification of, 54, 76, 162 unjust, 101, 123 complicity, 46, 110–11, 120, 121–25, 128–33 of citizens, 18, 78, 131 of humanitarian aid, 127 conscientious objection, 16, 52, 57, 197, 238–49

conscientious refusal, v, 16, 44, 52, 102, 200, 213, 214, 215, 217, 230, 231, 232, 234, 235, 237, 238, 245, 246, 247, 249, 257 contingent pacifism definition of, 10–13, 48 dignity, 66, 79, 86, 94, 99, 160 of soliders, 98, 162 diplomacy, 47, 53, 58, 61, 256 discrimination, 75 principle of, 54, 56, 70, 76, 246 distinction, 54, 56, 70, 246 drones, 55, 106, 173 Dworkin, Ronald, 88, 166, 167 epistemic argument, 48, 85 excuses, 103 uncertainty, 49 Erasmus, i, 1, 23, 29, 30, 31, 32, 34, 35, 36, 37, 43, 49, 53, 152, 257, 260, 261, 265 European Court of Human Rights, 157 Fiala, Andrew, 41–42 Foot, Philippa, 198 Franck, Thomas, 148, 152 Fuller, Lon procedural natural law, 223 Gandhi, Mahatma, 3, 229, 238 Geneva Conventions, 89, 168 genocide, 3, 12, 45, 50, 54, 60, 165, 248 Gentili, Alberico, 37 Gray, Christine, 152 Gray, J. Glenn, 39, 250–54, 255, 257 The Warriors, 252 Grotius, Hugo, i, 9, 37, 49, 62, 70, 72, 75, 76, 77, 78, 79, 92, 95, 176, 177, 181, 182, 183, 185, 187, 190, 191, 256, 261, 263, 264, 265 De Jure Belli ac Pacis, 70, 92, 187

269

270

Index

Hague Convention of 1899, 164 Hamas, 74 Hare, Richard Moral Thinking, 206, 208 Hart, H. L. A., 66 Henkin, Louis, 146, 148, 152 High Court of Israel, 162 Hobbes, Thomas, 186, 213, 214, 217–27, 232, 237, 256 Dialogue, 221, 222 Elements of Law, 219 in fora interna judgments, 181 in foro interno judgments, 185 Leviathan, 217, 220, 222 public and private conscience, 217, 218 Holmes, Robert, 39–42 Homer, 112 human rights, 57, 65–69, 72, 88–89, 94, 98, 121 and equal value of lives, 78 approach, 175 atrocities, 172 concern for, 57, 85, 105, 171, 174 forfeiture of, 99, 105, 161 norms, 163–67, 174, 186 protections of, 99 right to life, 65, 110, 156, 158, 161, 165, 186, 256 humanitarian aid workers, 125–31 crises, 62, 151 norms, 174 immunity, 65, 70–72, 75, 85 innocence, 6, 8, 46, 65, 68, 70–72, 79, 110–14, 117, 120 and complicity, 131–33 and killing of innocent, 81, 85, 87, 102, 106, 171 of humanitarian aid, 127 International Committee of the Red Cross, 89, 128, 159 and international law, 162 International Court of Justice, 143–46, 157, 166, 186 and Nicaragua case, 143, 152 and Nuclear Weapons case, 145, 167 and Palestinian Wall case, 145, 158, 168 doctrine of lex specialis, 158, 167–69 International Criminal Court, 189 collective responsibility, 180 Lubanga case, 177 Responsibility to Protect doctrine, 177, 178, 182

Iraq civil war, 173 invasion of Kuwait, 60 War, 93, 234, 247 Israel, 74 Jaspers, Karl, 112 jus in bello, 162 Just War conditions for, 4, 6 Kant, Immanuel, 79 following own conscience, 197 Metaphysics of Morals, 67 moral philosophy of, 66 King, Martin Luther, 3, 229, 238 Kutz, Christopher, 129 Lauterpacht, Hersch, 191 law and equity in legal philosophy, 215 and morality, 215 criminal, 111–14, 123 human rights, 6, 13, 53, 156–63, 168, 246, 256 humanitarian, 50, 53, 55, 94, 156, 157, 158, 166, 167, 168, 174, 256 international, 47, 53, 74, 137–55, 156, 170, 176–81, 192, 256 international criminal, 177–81 Lazar, Seth, viii, 9, 11, 44, 74, 79, 84, 85, 92, 261, 263 liability, 121–25, 130 Lieber Code, 93, 169–71 Locke, John, 214, 223–27, 256 The Second Treatise, 224 Martens Clause, 163–67, 186, 187, 192, 217 May, Larry After War Ends, 246 McMahan, Jeff, 74, 101, 102 mens rea, 105, 129 Meron, Theodor, 15, 163, 186, 265 Milosevic, Slobodan, 62 moral risk, 85, 87, 106, 108, 252 More, Thomas, 222 My Lai massacre, 72 necessity, 4, 5, 6, 8, 12, 14, 15, 29, 30, 34, 35, 36, 43, 46, 59, 65, 75, 76, 78, 87, 90, 91, 92, 93, 94, 95, 96, 102, 105, 107, 122, 128, 130, 131, 133, 144, 145, 146, 147,

Index 159, 160, 161, 162, 170, 171, 236, 243, 244, 246, 248, 251, 258 military, 160, 171 non-culpable ignorance, 105 Nuremberg, 91, 92 Oedipus, 110, 112, 113, 114–17 and humanitarian aid, 127 opinio juris, 151 Orestes, 111, 117–21 Ottaviani, Alfredo, 1, 2, 265 peace agreements, 190–92 Pictet, Jean, 159 Pinker, Steven, 55 Plato, 256 Apology, The, 197, 200, 204–06, 227 Crito, 215, 227–30 proportionality, 4, 6, 12, 14, 15, 31, 34, 35, 37, 43, 46, 48, 54, 55, 56, 59, 65, 69, 70, 71, 72, 73, 74, 75, 76, 78, 85, 93, 124, 131, 132, 133, 144, 145, 146, 147, 180, 244, 246, 248, 258 Rawls, John, 1, 44, 66, 208, 245, 265 reconciliation, 51, 177–85, 189, 190, 192, 256 legal literature on, 189 Reisman, Michael, 148 reparations, 51, 177–81, 189, 256 and stigmatization of ethnic group, 180 responsibility, 7, 84, 117 and metaphysical guilt, 112 retribution, 51 role-based rights, 88–89 Ruys, Tom, 151, 152 Rwanda Gacaca proceedings, 183 Ryan, Cheyney, 39–42 Schabas, William, 163 self-defense, 10, 38, 47, 60, 69, 81, 83, 89, 93, 131, 132, 141, 143, 144, 145, 150, 161, 163, 222, 248, 255 limitations on, 146 no generalized right to, 145 of another, 114, 131 right of, 153 temporary acts of, 141 Seneca, 23–26, 33, 36, 49 sexual violence, 178 Shue, Henry, 165 skepticism, 47 Socrates, 204–06, 209, 211, 227–30, 256

271 account of conscience, 197, 207 daimon, 204–06 soldiers complicity of, 132 death, 48, 61, 95 enemy, 103–05, 170, 174 innocence of, 111, 132, 171 lives, 69, 75, 105, 106, 252, 256 moral equality of, 97, 98, 102 rights, 48, 50, 57, 75, 79, 85, 87, 90, 97, 105, 106, 161, 252 volunteer v. conscription, 103 Sophocles, 114–17 South Africa Truth and Reconciliation Commission, 183 St. Petersburg Declaration, 169–71, 175 state legitimacy and John Locke, 223–27 and Thomas Hobbes, 223–27 Story, Joseph account of equity, 216 Suárez, Francisco, 6, 70, 183, 267 subjective judgment, 7 Teichman, Jenny, 41–42 Tertullian, 23, 26–29, 33, 39, 49, 254 Twain, Mark Huckleberry Finn, 197, 201–04, 207, 212 United Nations, 47, 58, 60, 108, 172, 174 charter, 14, 47, 137–55, 246, 255 peace-keeping missions, 172 Security Council, 141, 142, 146: weakness of, 148 Universal Declaration of Human Rights, 50, 66, 246 United States Court of Appeals United States v. Kauten, 240 United States Supreme Court Gillette v. United States, 242 Welsh v. United States, 241 Vietnam War, vii, 52, 233, 239, 240 Vitoria, Francisco, 5, 6, 7, 9, 51, 182, 268 Walzer, Michael Just and Unjust Wars, 68, 97 war civil, 81 end, 15, 39, 44, 46, 51, 56, 171, 177, 181–92, 254, 256 guerrilla, 81

272

Index

war (cont.) humanitarian, 8, 18, 48, 59, 61, 69, 83, 142, 150, 174 of liberation, 152 of self-defense, 153 Watada, Ehren, 234, 235, 242 Williams, Bernard, 114, 115, 116 Winch, Peter, 199

Woolf, Virginia, 250–54 Three Guineas, 253 World War I, 36 period between WWI and WWII, 253 World War II, vii, 2, 3, 8, 32, 45, 52, 90, 138, 147, 183, 189, 233, 244, 249, 251, 252 rebuilding after, 184