Law and Sentiment in International Politics: Ethics, Emotions, and the Evolution of the Laws of War 1108845002, 9781108845007

Table of contents :
Cover
Half-title
Series information
Title page
Copyright information
Contents
Acknowledgments
Epigraph
Part I A Theory of Moral Psychology and International Norms
1 Introduction: The Laws of War and the Puzzle of Norm Emergence
International Relations Theory and the Puzzle of Norm Emergence
Plan of the Book
Moral Psychology, the Laws of War, and the Ends of International Justice
2 Mapping the Mind: Moral Psychology and International Humanitarian Law
Norm Emergence and Cultural Evolution in International Theory
Realism: Power Politics and the Laws of Armed Conflict
Liberal Institutionalism: The Rational Design of the Laws of Armed Conflict
Constructivism: Cultural Evolution and the Social Construction of the Laws of Armed Conflict
Theory of Mind: A Naturalistic Theory of Moral Cognition and Emotion
Programming the Mind: Moral Judgments, Evolution, and Innateness
Perspective-Taking, Empathic Concern, and the Ethics of Killing in War
Perspective-Taking and Empathic Concern: A Conceptual Mapping.
The Empathy-Altruism Hypothesis and the Ethics of Killing in War.
Perspective-Taking, Empathy, and In-Group/Out-Group Biases.
Against Empathy Skepticism.
The Universal Grammar of the Laws of War: Moral Intuitions about Intentional Harm
Innate Biases, Individual Differences, and Cultural Variation: The Linguistic Analogy
Reason and Emotion in the Making of Moral Judgments
Culture, Cognition, and the Evolution of the Laws of War: How Mind and Culture Intersect
Is the Moral Brain Inflexible? Cultural Variation and the Cognitive Science of Neuroplasticity
Perspective-Taking, Empathy, and the Emergence of Civilian Protection Norms
Moral Psychology and the Durability of Civilian Protection Norms
Moral Intuitions and Communicative Action: The Restrictive and Permissive Effects of International Humanitarian Law
Considerations on Method
Part II The Universal Grammar of the Laws of War: China, Islam, and the West
3 Taming the Sovereign: State Formation and the Ethics of War in Ancient China
State Formation in Warring States China
The Emergence of the Warring States System
The Intellectual Currents of the Warring States System
The Rule of Law in Ancient China
The Righteous War Tradition in Ancient China
The Rules of War in Ancient Chinese Texts
Conclusion
4 War and Peace in Islamic Law: Cultural Evolution and the Ethics of War in Early Islam
The Sources of Islamic Law
Pre-Islamic Arabia and the Formation of the Islamic State
The Ethics of War in Islamic Law
Jus ad Bellum Principles
Jus in Bello Principles
Why Prevent Attacks on Civilians?
Explaining Convergence and Stability: Rationalism, Constructivism, and Innate Moral Intuitions
The Moral Psychology of Extremism
Moralistic Disgust and the Desire for In-Group Purity
In-Group/Out-Group Dynamics and Revenge
The Islamic State of Iraq and Syria
Conclusion
5 Moral Emotions and Natural Law: The Peace of God, Catholic Just War Theory, and the European Enlightenment
The Peace of God Movement and the Emergence of Civilian Protection Norms
From Just War to International Law: Religious and Secular Perspectives on Killing in War
The Secularization of Just War Doctrine: Jus in Bello Principles in Vitoria and Suarez
From Natural Law to the Law of Nations: Law and Sentiment in the Works of Grotius and Vattel
Conclusion
Part III Moral Sentiments and the Development of International Humanitarian Law
6 Humanizing Hell: The Hague Peace Conferences and the Second World War, 1899-1945
The Hague Peace Conference of 1899: Total Warfare and the Laws of Armed Conflict
The Martens Clause, Civilian Immunity, and the Law of Military Occupations
Lawful Military Targets: Indiscriminate Weapons, Airborne Projectiles, and Artillery Bombing
The Hague Peace Conference of 1907: Lawful Military Targets in Naval Warfare
Civilian Immunity, Military Targets, and the Laws of Naval Bombardment
Moral Emotions, Civilian Immunity, and the Protection of Merchant Vessels
On the Edge of Destruction: The Laws of War and Strategic Bombing in World War II
The Hague Commission of Jurists and the 1923 Draft Rules on Aerial Warfare
Once More unto the Breach: The Laws of War and Bombing Policy in World War II
Unlawful Targets: Legal Protections for Cultural Objects in World War II.
Protecting Friends, Exposing Enemies: Allied Justifications for Civilian Casualties.
Conclusion
7 A Moral Revolution in the History of Humankind: The Geneva Conventions and the Politics of International Humanitarian Law, 1945-1977
Protecting the Victims of Our Enemies: The Politics of Killing and the Geneva Conventions
Protected Persons in Their Hands: Air Warfare, Legal Discourse, and Intentional Targeting
Outlawing the Bomb: Nuclear Weapons and the Geneva Conventions of 1949
The Reaffirmation and Development of International Humanitarian Law: 1957-1973
The Additional Protocols of 1977: Intentional Killing and the Politics of Proportionality
Protections for Civilians in Protocol I: Carpet-Bombing, Spreading Terror, and Proportionality
Conclusion
8 Conclusion: Moral Emotions, Permissive Effects, and the Rationalization of International Humanitarian Law
Summary of the Argument and Its Implications
Rationalizing the Laws of War: Coercive Power and the Principle of Affected Interests
Moral Autonomy and Coercive Power: Why Military Force Requires Political Justification
Affected Interests and Unintended Killings: Ramifications for International Humanitarian Law
Reason and Emotion in International Humanitarian Law
Final Thoughts: Moral Progress and the Laws of Armed Conflict
References
Index

Citation preview

Law and Sentiment in International Politics

Drawing on recent research in moral psychology and neuroscience, Law and Sentiment in International Politics argues that universal moral beliefs and emotions shaped the evolution of the laws of war, and in particular laws that protect civilians. It shows that civilian protection norms are not just a figment of the modern West, but that these norms were embryonic in earlier societies and civilizations, including ancient China, early Islam, and medieval Europe. However, despite their ubiquity, civilian protection rules are inherently fragile, and their fragility lies not just in failures of compliance, but also in how moral emotions shaped the design of the law. The same beliefs and emotions that lead people to judge that it is wrong to intentionally target civilians can paradoxically constitute the basis for excusing states for incidental civilian casualties, or collateral damage. To make the laws of war work better for civilians, Law and Sentiment in International Politics concludes that we need to change how we think about the ethics of killing in war. David Traven is an Assistant Professor of Political Science at California State University, Fullerton.

Cambridge Studies in International Relations: 155 Law and Sentiment in International Politics editors Evelyn Goh Christian Reus-Smit Nicholas J. Wheeler editorial board Jacqueline Best, Karin Fierke, William Grimes, Yuen Foong Khong, Andrew Kydd, Lily Ling, Andrew Linklater, Nicola Phillips, Elizabeth Shakman Hurd, Jacquie True, Leslie Vinjamuri, Alexander Wendt Cambridge Studies in International Relations is a joint initiative of Cambridge University Press and the British International Studies Association (BISA). The series aims to publish the best new scholarship in international studies, irrespective of subject matter, methodological approach or theoretical perspective. The series seeks to bring the latest theoretical work in International Relations to bear on the most important problems and issues in global politics. 154 Allison Carnegie and Austin Carson Secrets in Global Governance Disclosure Dilemmas and the Challenge of International Cooperation 153 Lora Anne Viola The Closure of the International System How Institutions Create Political Equalities and Hierarchies 152 Cecelia Lynch Wrestling with God Ethical Precarity in Christianity and International Relations 151 Brent J. Steele Restraint in International Politics 150 Emanuel Adler World Ordering A Social Theory of Cognitive Evolution Series list continues after index

Law and Sentiment in International Politics Ethics, Emotions, and the Evolution of the Laws of War David Traven California State University, Fullerton

University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 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/9781108845007 DOI: 10.1017/9781108954280 © David Traven 2021 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 2021 A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data Names: Traven, David, author. Title: Law and sentiment in international politics : ethics, emotions, and the evolution of the laws of war / David Traven, California State University, Fullerton. Description: Cambridge, United Kingdom ; New York, NY : Cambridge University Press, 2021. | Series: Cambridge studies in international relations | Includes bibliographical references and index. Identifiers: LCCN 2020055273 (print) | LCCN 2020055274 (ebook) | ISBN 9781108845007 (hardback) | ISBN 9781108949392 (paperback) | ISBN 9781108954280 (epub) Subjects: LCSH: War–Protection of civilians. | Humanitarian law. | War–Moral and ethical aspects. Classification: LCC KZ6515 .T73 2021 (print) | LCC KZ6515 (ebook) | DDC 341.5/7–dc23 LC record available at https://lccn.loc.gov/2020055273 LC ebook record available at https://lccn.loc.gov/2020055274 ISBN 978-1-108-84500-7 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

page vii

Part I A Theory of Moral Psychology and International Norms

1

1 Introduction: The Laws of War and the Puzzle of Norm Emergence

3

2 Mapping the Mind: Moral Psychology and International Humanitarian Law

18

Part II The Universal Grammar of the Laws of War: China, Islam, and the West

89

3 Taming the Sovereign: State Formation and the Ethics of War in Ancient China

91

4 War and Peace in Islamic Law: Cultural Evolution and the Ethics of War in Early Islam

120

5 Moral Emotions and Natural Law: The Peace of God, Catholic Just War Theory, and the European Enlightenment

162

Part III Moral Sentiments and the Development of International Humanitarian Law

191

6 Humanizing Hell: The Hague Peace Conferences and the Second World War, 1899–1945

193

v

vi

7

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Contents

A Moral Revolution in the History of Humankind: The Geneva Conventions and the Politics of International Humanitarian Law, 1945–1977

238

Conclusion: Moral Emotions, Permissive Effects, and the Rationalization of International Humanitarian Law

265

References Index

283 302

Acknowledgments

This book has followed me for the better part of a decade. During that time, I have incurred numerous debts, both personal and intellectual. I want to start by thanking my wife, Ericka, and my children, Mira and Cyril. They have supported me in innumerable ways: through the ups and downs of the research and writing process and through the everyday frustrations that it took to bring the book to a conclusion. More importantly, they have taught me through their love and support that compassion is indeed a natural sentiment. To my parents, Max and Christina, my debts are too numerous to cite. The path to conceiving and writing this book contained a number of unexpected twists and turns, and they were always there with encouragement and confidence. Through it all, they gave me the kind of support that Ericka and I hope to give our own children. To my big brother, Mike, thanks for setting an example I could look up to and for letting me tag along. Many years ago, I learned about philosophy through Mike’s undergraduate philosophy class at Denison University, and it helped to give my life direction, encouraging me to pursue an undergraduate degree in Philosophy before getting a PhD in Political Science. This book is one result. This book grew out of a dissertation completed at Ohio State University. I want to thank my dissertation advisors, Alexander Wendt, Jennifer Mitzen, and Mike Neblo, for reading and commenting on numerous drafts of the dissertation that formed the backbone of this book. Their enthusiasm and encouragement in undertaking the dissertation project was essential. Thanks, in particular, to Alex for encouraging me to write a dissertation that I found intrinsically interesting and that incorporated my wide-ranging interests in philosophy, ethics, moral psychology, IR theory, history, and international law. My graduate cohort in the Department of Political Science at Ohio State University provided the ideal intellectual environment to bring such an idea to fruition, with a lot of fun along the way. Many ideas and formulations were first tried, abandoned, and ultimately pursued vii

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Acknowledgments

during these years over numerous cups of coffee. In no particular order, I would like to thank Caleb Gallemore, Marcus Holmes, Bentley Allan, Austin Carson, Fernando Nuñez-Mietz, Nina Kollars, Jason Keiber, John Oates, Eric Grynaviski, Josh Kertzer, Eleonora Mattiacci, Zoltan Buzas, Burcu Bayram, and Tim Luecke. I would also like to thank the Mershon Center for International Security Studies for a dissertation research grant that enabled me to conduct archival research at the National Archives in Washington D.C. on U.S. foreign policy toward the Geneva Conventions. I began the process of converting the dissertation into a book while I was a Visiting Assistant Professor at Kenyon College in Ohio. Special thanks to David Rowe for encouraging me to draw the connection to liberal Enlightenment theories of natural law—a connection that now seems to have been embryonic in the idea all along. Many thanks also to Pamela Camerra-Rowe and Fred Baumann for making my time at Kenyon such a memorable experience. This book benefited substantially from a MacArthur Postdoctoral Fellowship in Nuclear Security at the Center for International Security and Cooperation (CISAC) at Stanford University in the 2014–2015 academic year. Special thanks to Scott Sagan for seeing promise in the idea, and for reading and commenting on drafts of the chapters that I worked on while at Stanford. Since my time at Stanford, Scott has continued to provide me with useful advice, and he has continued to help disseminate my ideas to a broader audience. The book has benefited greatly from his encouragement and support. The policy-oriented environment at CISAC forced me to think beyond my dissertation in ways that helped turn it into a book. For an IR theorist with a strong political theory orientation and a background in philosophy, my time at CISAC was truly a formative intellectual experience that taught me how to think about the policy implications of my research. It also gave me the pleasure to work alongside an amazing group of political scientists, historians, nuclear weapons experts, international lawyers, and anthropologists. In no particular order, I would like to thank Lynn Eden, Daniel Altman, Jonathan Chu, James Cameron, Edward Geist, Jackie Kerr, Shiri Krebs, Allen Weiner, Christopher Lawrence, Ben Wilson, and Magdalena Stawkowski for comments and discussion on earlier drafts and papers that grew into this book. Substantial work on the book was completed while I was a Visiting Assistant Professor at Williams College in Massachusetts. The final draft of the book was completed at California State University-Fullerton. I would like to thank my colleagues at both institutions for their support while this book project was being finalized.

Acknowledgments

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I would also like to thank John Haslam and the editorial board of Cambridge Studies in International Relations for their work and advice on this project. Thanks also to the anonymous reviewers of this manuscript. Their comments and advice greatly improved the final product. Finally, I would like to thank Brian Rathbun, whose help and advice during the final stages of the project proved extremely helpful and gave me the confidence to bring the book to a close. Portions of this book were previously published as “Moral Cognition and the Law and Ethics of Armed Conflict,” International Studies Review, 2015, 17(4): 556–587. I would like to thank Oxford University Press for permission to reprint portions of this article. All errors and inconsistences remain my own.

Even in open war, a just prince rightly takes possession of all that belongs to the public in the enemy country, but he respects the person and property of private individuals; he respects the rights upon which his own are founded. Since the purpose of war is the destruction of the enemy state, one has the right to kill its defenders as long as they bear arms, but as soon as they lay them down and surrender, ceasing to be enemies or instruments of the enemy, they become once again simply men, and no one has any further right over their lives. Sometimes it is possible to kill the state without killing a single one of its members, but war confers no right except that which is necessary to its purpose. These principles are not those of Grotius; they are not founded upon the authority of poets, but they are derived from the nature of things and are founded upon reason. —Jean-Jacques Rousseau, On Social Contract (1762)

Part I

A Theory of Moral Psychology and International Norms

1

Introduction The Laws of War and the Puzzle of Norm Emergence

On January 23, 1368, Zhu Yuanzhang, a man of humble origins who rose to become the leader of a successful peasant revolt, proclaimed himself emperor of China in the eastern city of Nanjing. To consolidate his power against the remnants of the Yuan, a foreign-led dynasty that had been established by the Mongolian conqueror Kublai Khan, Zhu ordered his generals to undertake an armed expedition in the north in the first weeks of August in 1368. Depicted in later histories as “having observed with revulsion the senseless destruction of warfare and as having attempted … to impose troop discipline in order to win the goodwill of conquered populations,”1 Zhu is reported to have ordered his generals to avoid slaughtering civilians: The people of North China have long suffered the oppression of the armed bands. Scattered far and wide, they long for one another. It was for this reason that I commanded my generals to campaign in the North in order to rescue the people from the flood and flame. The founders of the Yuan ruling house won merit in their service to others. Their descendants, however, were not moved to compassion by the suffering of the people. Heaven had quite enough of them and cast them out. The rulers were at fault… When former dynasties were overthrown, it was because they had recklessly indulged in slaughter, defied Heaven and oppressed the people. I simply cannot abide these things. When my generals subjugate cities, they shall not wantonly burn and plunder, not abandon themselves to slaughter. To the Yuan imperial clansmen and consort families, let full protection be given, in order that all may be preserved. Above, respond to the will of Heaven and below, comfort the people in their needs. This, in turn, will further my purpose of supplanting evil-doers and giving peace to the people. Those who fail to respect (my) decree shall be removed from office without hope of forgiveness.2

Having thereby established and consolidated the Ming dynasty, Zhu was portrayed by later Ming historians as a “warrior hero” who exemplified

1

Mote (1988, 49).

2

Quoted in Taylor (1975, 59–60).

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the Mandate of Heaven – to see “as the people see,” hear “as the people hear.”3 He ruled China until his death on June 24, 1398. Ming historians almost certainly exaggerated Zhu’s benevolence and compassion. Indeed, he is reputed to have been a fairly capricious ruler and to have been quite “brutal” “in dealing with those he considered disloyal.”4 Nevertheless, some modern historians have noted that early Ming depictions of him likely bear some relation to the truth. In the first years of his reign, for example, “he strove to create the image of a wise future ruler, granting tax remissions to war-ravaged regions, punishing looters among his own troops, and rewarding loyal, altruistic service to the Yuan as well as among his own followers.”5 Accurate or not, Zhu’s purported order to refrain from killing civilians reflected a long-standing tradition of strategic and moral restraint in Chinese theorizing about the use of military force.6 In The Art of War, the ancient Chinese general Sun Tzu advised military leaders to avoid destroying enemy cities, and instead to win without fighting – a perspective on war that is usually interpreted as advocating the use of deceptive stratagems, secrecy, and psychological warfare tactics. Yet, Sun Tzu’s emphasis on moral restraints is undeniable, especially in light of the fact that he viewed “wisdom” and “benevolence” as crucial traits of a successful military leader.7 Other ancient Chinese treatises are even more direct in their emphasis on the ethics of restraint toward civilians. For example, the Wei Liao-Tzu stipulated that In general, [when employing] the military do not attack cities that have not committed transgressions or slay men who have not committed offenses. Whoever kills people’s fathers and elder brothers, whoever profits himself with the riches and goods of other men; whoever makes slaves of the sons and daughters of other men is in all cases a brigand.8

Although some scholars suggest that the reason for emphasizing compassion and benevolence was strategic9 – to get the people to willingly submit – the evidence also shows that political and military theorists from the earliest years of ancient Chinese history believed that it is wrong to kill civilians. Modern international law reflects very similar concerns. Indeed, since the late nineteenth century, states have constructed an increasingly elaborate system of international law – one that is designed specifically to protect civilians in war and that takes inspiration from secular interpretations of just war theory and pre-Enlightenment theorists such as Hugo Grotius. Despite the fact that compliance with the laws of war remains

3 5 8

4 Taylor (1975, 1); Mote (1988, 50). Langlois (1988, 156). 6 7 Mote (1988, 50). Lo (2012a). Sawyer (1993, 157). 9 Sawyer (1993, 254–255). Johnston (1995).

Introduction: Laws of War & Puzzle of Norm Emergence

5

imperfect, at no earlier point in human history have innocent civilians enjoyed the kinds of legal protections that they do in contemporary international law. Indeed, prior to the development of the modern laws of warfare, villages and towns were systematically pillaged, burned, starved out, or decimated, and their inhabitants were beaten, raped, or summarily executed, often with full legal impunity. While civilian fatalities are still a regrettable feature of modern war, contemporary international law clearly defines these practices as war crimes, and it has developed an increasingly authoritative regime of criminal law institutions for administering international humanitarian law (IHL) in practice.10 Across vast stretches of time, space, and culture, the norms of war in early China and modern international law are surprisingly similar. In Part II, I show that something similar can be said about Islamic law, which likewise contains rules against targeting the innocent. Taking cultural variation as a given, how can we explain why human societies as disparate as ancient China, medieval Islam, and the modern West nevertheless converged on very similar rules for regulating the use of military force? Drawing on recent scholarship in moral psychology and cognitive neuroscience, in this book I argue that the laws of war – specifically those rules devoted to the protection of noncombatants – are grounded in universal moral sentiments that shape how people think about the ethics of killing in war. I show that civilian protection norms are not simply a figment of the modern West, but that they have also emerged in civilizations as culturally diverse as ancient China and the early Islamic empire. The laws of armed conflict do reflect a growing revulsion toward civilian deaths, but I show that this sense of revulsion was embryonic in earlier civilizations, in the East as well as in the West. But despite their ubiquity, civilian protection norms are inherently fragile. Indeed, civilians continue to die at an alarming rate – not only in ethnic cleansing campaigns and mass killings, but also as unintended side effects of otherwise lawful military operations. In what follows, I show that their fragility lies not just in failures of compliance, but also in the moral beliefs and emotions that shaped the creation of the laws of war. Although the laws of war forbid states from killing civilians intentionally, they permit states to use strategies, tactics, and weapons systems that expose civilians to high risks. The laws of war are asymmetric in how they address intentional versus unintentional civilian casualties: they place a much higher valence on intentional and foreseen killing than they do on unintentional deaths. I argue that the moral beliefs and sentiments that shaped the creation of the laws of war paradoxically enable states to evade accountability for incidental collateral

10

Jo and Simmons (2016); Sikkink (2011).

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A Theory of Moral Psychology and International Norms

damage. While the main focus of this book is on developing a theory of how societies converge on similar norms of war, my analysis also provides critical insights into the failures and imperfections of the laws of war. In the conclusion, I argue that in order to improve the laws of war, policymakers and human rights activists, not to mention average citizens, need to exercise their capacities for empathy and perspective-taking to modify how we think about the ethics of killing in war. More specifically, I argue that IHL needs to be improved so that states are required to more equitably distribute the risks between their own armed forces and civilians on the ground. Thus, I stake out two key claims in this book. First, I argue that the laws of war are rooted in universal moral sentiments that govern how people think about the ethics of killing. Most human beings have innate abilities for perspective-taking and empathic concern, and when these abilities are engaged, for example, via persuasion, deliberation, or emotionally salient events, societies converge on similar norms for protecting noncombatants in war. When political actors design norms of war for protecting civilians, they use a grammar of moral rules for how to categorize individual actions, a grammar of moral rules that reflects systematic asymmetries in how humans process information about the ethics of killing in war: intentionally shooting one civilian is a war crime, yet accidentally killing a much larger number is seen as acceptable as long as the expected military gains outweigh the civilian losses. Second, I argue that the laws of war have both restrictive and permissive effects. Although the laws of war do generate significant protections for civilians (their restrictive effects), states can exploit their permissive effects, thereby evading accountability for unintended casualties. By shaping how states define the meaning of compliance with IHL, our moral beliefs and emotions simultaneously restrict and permit the use of violence against civilians in armed conflict. To set the stage for the rest of this book, in the following section, I briefly sketch out my theory of international norms, and I explain how it advances debates on norm emergence in International Relations (IR) scholarship. I then outline the plan of the book and discuss the normative implications of the theory and historical case studies.

International Relations Theory and the Puzzle of Norm Emergence How did civilian protection rules emerge,11 and why do they have the content that they do? In existing IR theory, there are three traditional 11

I examine four laws of war principles: distinction, proportionality, precaution in attacks, and unnecessary suffering. The principle of distinction holds that states are required to distinguish military from civilian targets. Deliberate attacks against civilians or civilian

Introduction: Laws of War & Puzzle of Norm Emergence

7

approaches to explaining the evolution and design of international institutions and norms. Realist and rational choice theorists argue that states create institutions to advance their own interests. While realists argue that powerful states create international institutions to secure their political and military interests, rational choice theorists argue that they design institutions to overcome collective action problems and to enforce mutually beneficial agreements.12 Still others argue that states design institutions to uphold international order through strategic restraint and to signal benign intentions to other states.13 Lastly, constructivists argue that international law reflects the moral values and practices of states (and certain non-state actors) – values and practices that are unique to specific historical time periods.14 In The Image Before the Weapon, for example, Helen Kinsella writes that the “laws of war … are consistently described as arising from a specifically European (Western) culture, and from a highly Christianized one as well.”15 While these theories offer useful insights, they have three principal limitations. First, they do not explain why societies or civilizations that are otherwise very different nevertheless converge on similar norms of warfare. Drawing on a range of historical evidence, I show that moral and legal institutions for safeguarding civilians in war are far more prevalent in human societies than many IR theorists recognize. Although the conventional wisdom holds that civilian protection norms are unique to the modern West, I show that norms for protecting the innocent in war have also emerged in non-Western societies, specifically Warring States China and early Islam. The existing paradigms in IR provide important insights into the processes whereby human societies converge on specific norms, but I argue that in order to explain their similarity in content, the traditional IR paradigms need to be integrated with a neuroscientific framework of moral cognition, emotion, and discourse. Second, existing IR scholarship does not adequately account for the content of the laws of warfare. As Kathryn Sikkink acknowledges in The Justice Cascade, “the single most difficult issue to explain is why certain

12 13 14 15

objects are war crimes. The principle of proportionality holds that incidental civilian losses must not be excessive in relation to expected military gains, and the principle of precaution in attacks holds that states must take feasible precautions to minimize civilian suffering. Finally, the principle of unnecessary suffering holds that soldiers are not allowed to use weapons or tactics that cause unnecessary suffering (Kalshoven and Zegveld 2001, 22). Mearsheimer (1994/1995); Carr (1939); Krasner (1999); Keohane (1984); Koremenos, Lipson, and Snidal (2001); Morrow (2014). Ikenberry (2001); Thompson (2010); Savarese and Witt (2017). Wendt (1999); Bull (1977); Finnemore (1999); Reus-Smit (2004). Kinsella (2011, 17).

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ideas at certain moments in certain places resonate, grab attention, and become possible.”16 In this book, I argue that in order to fully explain why “certain ideas at certain moments” resonate and “grab attention,” IR scholars need to revise much of what they think about the nature of human cognition, emotions, and discourse. In particular, although many constructivists believe that cultural values shape moral beliefs all the way down,17 a more compelling account of norms should leave space for evolved moral psychology. Interestingly, Sikkink explicitly mentions that research in cognitive science provides a potentially fruitful avenue for explaining the content of international norms. However, she points out that it would be “heresy” for a political scientist to argue that some moral principles are substantially innate.18 In what follows, I take up this challenge by showing how shared moral beliefs and emotions shape the content of the law and ethics of war. Third, existing scholarship does not fully explain how the laws of war constrain and enable violence against civilians. With some important exceptions,19 most scholars have focused on how the laws of war shape (or fail to shape) political and military decision-making in war. In short, they have focused on the problem of compliance.20 While the compliance literature has led to important insights, it overlooks some of the paradoxical effects that the law can have on military practices. In particular, the laws of armed conflict prohibit military personnel from deliberately killing civilians, yet they permit civilians to be killed as an unintended side effect of otherwise justifiable strategies, provided, of course, that civilian casualties are not excessive in relation to the direct and concrete military gains anticipated. But while prohibiting intentional attacks on civilians is important, it still allows for quite a lot of bloodshed. For example, during the US war in Vietnam, Operation Rolling Thunder – a three-year bombing campaign that was directed against North Vietnam – caused about 52,000 civilian deaths.21 Although the United States did attack dual-use structures – that is, those that have both military and civilian uses – high-level officials did not order the deliberate slaughter of civilians.22 Since the 52,000 civilian deaths were incidental to the Johnson administration’s overall objectives, and since the administration did not order intentional attacks on civilians, some scholars argue that 16 19 20 21 22

17 18 Sikkink (2011, 261). Wendt (1999, 113–135). Sikkink (2011, 261). Sanders (2018); Hurd (2017); Zehfuss (2010); Cronin (2013); Jochnick and Normand (1994). Downes (2008); Valentino, Huth, and Croco (2006); Morrow (2007, 2014); Finnemore (1999). Pape (1996, 190). Bellamy (2012, 173–182); Crawford (2014b); Parks (1982); Clodfelter (1989); Traven and Holmes (2021).

Introduction: Laws of War & Puzzle of Norm Emergence

9

Rolling Thunder was broadly compliant with the laws of war.23 Had Rolling Thunder intentionally targeted even 5,000 civilians (or fewer), the United States would have thereby committed an unequivocal war crime. Similar comments could be made about more recent US operations in Iraq and Afghanistan. Examples like this show that far from simply prohibiting direct attacks on civilians, IHL sometimes allows for what Neta Crawford calls systemic military atrocities, collateral losses that are unintended.24 But apart from the direct side effects of military operations, armed conflict also has indirect effects on the population. The epidemiologist Paul Wise argues that when we factor in the indirect effects that armed conflict has on human societies, the unintended effects of war vastly overshadow their directly intended effects, not to mention their immediate, if still incidental, side effects. As he puts it, “most civilian casualties in war are not the result of direct exposure to bombs and bullets; they are due to the destruction of the essentials of daily living, including food, water, shelter, and health care.”25 According to one report, “the indirect health consequences of civil wars between 1991 and 1997 throughout the world were twice that associated with direct, combat-related effects.”26 In Wise’s view, numbers like this show that “war generates significant elevations in indirect mortality and disability above prior baselines.”27 Though IHL requires states to avoid attacks on objects that are indispensable to the livelihood of civilians, the emphasis that it places on intentions means that it provides fewer legal safeguards for holding states accountable for the indirect effects of warfare. Constructivists and critical theorists are well aware of the permissive effects of international law.28 However, I argue that they have overlooked a key source of some of these permissive effects. While several IR scholars have called attention to the strategic and discursive sources of permissive international norms,29 here I argue that the permissive effects of IHL are rooted in shared cognitive and emotional structures that lead people to see intentional killings as a bigger moral problem than unintentional side-effect killings. While the main goal of this book is to examine how moral beliefs and emotions shaped the design of the laws of war, in doing 23 24 27 28 29

See Parks (1982), who suggests that the Johnson administration could have lawfully bombed a more extensive array of targets. 25 26 Crawford (2013). Wise (2017, 139). Wise (2017, 143). Wise (2017, 144). Tannenwald (2007); Sanders (2018); Zehfuss (2010); Owens (2003); Buzas (2017); Jochnick and Normand (1994). For a strategic account, see Dixon (2017). For a more discursive account, see Owens (2003) and Tannenwald (2007).

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A Theory of Moral Psychology and International Norms

this it also provides insights into how IHL constrains and enables violence against civilians. Using the hard case of Allied bombing policy during the Second World War, I argue in Chapter 6 that moral beliefs and emotions have an indirect effect on state policy by shaping the restrictive and permissive norms that states use to justify their decisions. I show that not only did moral beliefs about intended and unintended killings ensure that aerial bombing practices were not fully outlawed in the negotiations over The Hague Conventions of 1899 and 1907, but that states used the distinction between intended/unintended killings to rhetorically justify strategic bombing policies. In short, I argue that by shaping how states define law compliance, our shared moral belief systems can sometimes facilitate unintentional violence against noncombatants. To resolve these problems, I defend three key claims. First, I argue that the laws of armed conflict are grounded in the cognitive–emotional wiring of the brain. Drawing on a range of recent research in cognitive neuroscience, social psychology, evolutionary psychology, and moral theory, I argue that most humans have cognitive and emotional capacities that lead them to believe that it is wrong to intentionally kill innocent people in certain circumstances. These moral intuitions lead people to create social norms that set out what is permissible and impermissible in armed conflicts. When people think about the ethics of killing in war, they use a grammar of moral rules30 for how to categorize individual behaviors, and this grammar of moral rules shapes how diplomats design the rules of IHL. Social psychological processes, such as empathy, shape the emergence of civilian protection rules: critical events such as major wars or humanitarian crises induce empathy for war victims, and as a result, people are more likely to support the creation of stronger laws for protecting innocent people. While several prominent scholars have started to question the value of empathy,31 I contend that as long as perspective-taking and empathy are properly targeted, they can encourage people to take the moral interests of others far more seriously than they otherwise would. Empathy is not a panacea, but it can help to expand the horizons of moral concern beyond their current limits. Second, I argue that most people have cognitive–emotional biases that shape how they think about the ethics of killing in war. As a result, these cognitive–emotional biases influence the creation and design of IHL. One such bias is what I refer to as the intention/side-effect distinction. The intention/side-effect distinction holds that intended killings are morally 30 31

Mikhail (2002, 2007, 2011); Dwyer (1999, 2006, 2009); Chomsky (2009). Bloom (2016); Prinz (2011).

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worse than unintended, side-effect killings. In the chapters that follow, I explain how this distinction has significantly affected the development and application of the laws of armed conflict – in ways that not only generate restrictive effects for how states can treat civilians in war, but that also generate permissive effects that allow states to expose civilians to mass death and destruction. Because these psychological mechanisms are broadly universal rather than culture specific, they help explain how societies that are materially and culturally diverse can nevertheless converge upon moral and legal norms that are very similar. Furthermore, my theory helps explain the content of the laws of armed conflict by examining what makes people distinguish between intentional and unintentional harms, legitimate and illegitimate targets, and restrained and unrestrained acts of violence. My contention is that in order to explain how human societies converge on civilian protection norms, IR theorists need to build upon the more naturalistic theory of moral cognition and emotion that I develop here. Finally, I argue that my theory not only helps us understand how the laws of war emerged, but it also helps us explain why they fail to adequately protect. As James Morrow has persuasively shown,32 the laws of war do influence how states make decisions in war. Yet, as I mentioned earlier, they still allow for quite a bit of innocent bloodshed. Recent incidents in Syria, Iraq, and Myanmar have shown that deliberate attacks on civilians are an ongoing concern in international politics. Yet, unintended side-effect killings are a significant problem as well. Indeed, when we incorporate the indirect effects of war on healthcare resources, infant mortality rates, and so forth,33 the unintended effects of armed conflict can be quite extensive. Although the principle of proportionality prohibits attacks that are expected to generate excessive civilian suffering, this still allows for high levels of incidental harm. Furthermore, the notion of excessiveness is inherently vague, and as a result, it is open to interpretation. As such, compliance with IHL still enables states to cause significant harm. The main goals of this book are theoretical: to explain how civilian protection norms arise in human societies and to understand how these norms constrain and enable civilian victimization. However, my argument also has normative implications for the laws of war. In particular, I argue that when it comes to the law and ethics of killing in war, our moral sentiments are imperfect. Even though they encourage people to create international norms that protect civilians against deliberate

32

Morrow (2014).

33

Wise (2017).

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A Theory of Moral Psychology and International Norms

attacks, they also have permissive effects that ultimately enable states to justify military strategies and tactics that expose civilians to unintended risks, thereby allowing states to evade accountability for civilian deaths in war. Although the laws of war need to be pragmatic, one normative upshot of this book is that in order to further advance the internal moral ideals of IHL, we need to develop legal norms that manifest greater concern for the unintentional and indirect effects of military operations. Drawing on the discourse ethics of Jürgen Habermas, in Chapter 8, I sketch a theory of jus in bello principles that would require states to ensure that the incidental risks of war are more equitably distributed between soldiers and civilians. More specifically, I argue that the laws of war should be based upon the principle of affected interests, which holds that individual actions are morally right if, and only if, they are consistent with norms that could be justified to all affected parties. Although the principle of affected interests is very demanding, it does not prohibit war altogether, nor does it forbid states from causing unintended civilian deaths. Rather, it requires states to engage in perspective-taking and to implement only those tactics that they could rationally accept being used against their own civilian population. More importantly, I claim that the principle of affected interests is consistent with the theory of moral psychology that I articulate in this book. Specifically, I argue that even though it would reduce the moral salience of the intention/side-effect distinction, it also reflects a strong sense of empathic concern for the unintended casualties of war. Plan of the Book This book sets forth a novel way of thinking about the development of international norms. In Part I, I sketch a theory of moral psychology and international norms that will enable IR theorists to better explain how civilian protection rules emerge and develop across human societies, and in Part II, I use this framework to help explain the development of the norms of war in both Western and non-Western civilizations. In Part III, I examine the evolution of the civilian protection regime in modern international law, and I focus specifically on how the laws of war developed before and after World War II. Using original archival research, I look at how states used emotional arguments and moral ideas to create particular civilian protection norms. Contrary to existing explanations of institutional design, I show how emotional framing shaped the content of the laws of armed conflict from the late nineteenth century through World War II and the Cold War era. Consistent with my argument about the permissive effects of the laws of war, I show how

Introduction: Laws of War & Puzzle of Norm Emergence

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legal considerations influenced aerial bombing doctrine and policy in the interwar period and to some extent during World War II. Chapter 2 sets out my account of international civilian protection norms. I begin by briefly explaining why it is necessary to develop a theory of moral cognition and emotions to account for the design and evolution of international humanitarian norms. I argue that existing theories have a difficult time explaining why some norms repeatedly emerge across human societies. I then outline a theory of moral psychology that holds that some moral norms are grounded in evolved cognitive heuristics and emotions. To articulate this view, I review recent research in cognitive neuroscience, social psychology, and evolutionary moral psychology. I argue that human beings possess evolved capacities for perspective-taking and empathy and that when the social environment engages these abilities, people create stronger norms for protecting civilians from intentional killing. In addition, I show that moral judgments are governed by subtle asymmetries in how people evaluate intentions: intentional harms are judged as morally worse than unintentional harms. Finally, I argue that even though intuitive processes tend to shape individual and communicative reasoning, moral reasoning as such plays an independent role in calibrating our intuitions and mediating their effect on the law. This theory has three main observable implications. First, cognitive– emotional dispositions bias the evolution of the norms of war. A key claim of the theory is that moral psychology is group-oriented, by which I mean that people tend to place greater relative value on the lives and interests of their family, friends, and tribal affiliates. Part of the process of creating norms that extend recognition to the rights of enemy civilians has to do with expanding the circle of moral concern.34 The social and historical mechanisms that work to expand the circle of concern are complex and multifarious, ranging from the evolution of the sovereign state system in early China to the rise of humanitarian social movements in the West. The idiosyncrasies of each culture are important for explaining how societies differ, but my theory helps to explain their common trajectory of convergence on similar norms of war. Second, not only do emotionally salient events generate pressure to create stronger norms, but my theory holds that civilian protection rules should be relatively durable because they are affect-backed.35 Third, in diplomatic negotiations, there should be evidence that state and non-state actors use moral intuitions to create the restrictive and permissive restraints of IHL.

34

Singer (1981).

35

Nichols (2002).

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A Theory of Moral Psychology and International Norms

One important implication of my argument is that civilian protection norms are not merely based on culture-specific values, but rather that they are relatively universal. To defend this view, in Part II, I analyze the development of civilian protection rules in three different cultures: Warring States China, early Islam, and the West. In particular, I use primary textual sources and secondary literature to establish the conclusion that a very similar set of moral and social norms arose in these culturally diverse societies. I argue that a complete explanation for how these societies converged on similar norms must incorporate the theory of moral psychology set forth in Part I. Furthermore, in each of these cases, I show how a more naturalistic account of moral cognition and emotion can actually improve our understanding of divergent cases – i.e., cases that would seem to conflict with the idea that civilian protection norms are relatively universal. In Chapter 3, I show that in the case of ancient China, civilian protection ideas originated in the formation of the sovereign state system during the Warring States period. As sovereign states developed, they increasingly relied on peasant labor for agriculture and warfare, and this led to the emergence of moral and political theories that reflected the interests of ordinary people. In Chapter 4, I argue that the theory set forth in Part I can help to explain why civilian protection norms arose and stayed salient during the early development of Islamic law. More recent events such as the rise and spread of Salafi jihadism, the use of suicide terror tactics, and the brutal practices of the Islamic State of Iraq and Syria (ISIS), have led some to question the degree to which Islam is committed to norms of war that prohibit attacks on civilians. While this is an issue that deserves a booklength treatment of its own,36 public opinion polls routinely show that the vast majority of Muslims do not support intentional attacks on civilians.37 Furthermore, the literature on radicalization and militant Salafism shows that in-group/out-group dynamics are a key ingredient in the radicalization process, and my theory of moral psychology builds in assumptions about the effects of in-group/out-group identities on moral judgments. Although extremist violence of any sort is a hard case for the theory set forth in Part I, I argue that the theory can provide useful insights into the moral psychology of extremist violence, specifically by highlighting the conditions that generate a lack of respect for the lives and interests of civilians. In Chapter 5, I examine the early emergence of civilian protection norms in medieval Europe, and I trace their evolution in the religious and 36 37

Kelsay (2007); Khadduri (1955). Naurath (2011); Poushter (2015). For a discussion of cross-country variation, see Pew Research Center (2013).

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secular just war tradition in the West. Though the jus in bello principles of just war doctrine have changed significantly over time, my theory that they are based on evolved moral beliefs and emotions helps explain the historical trajectory and persistence of the principles of distinction and proportionality, from medieval natural law theory to the Enlightenment. Part III looks at the development of the modern laws of war in the nineteenth and twentieth centuries. Chapter 6 examines the creation of the positive laws of armed conflict during the negotiations over the 1899 and 1907 Hague Conventions and The Hague Commission of Jurists that created the 1923 draft rules on aerial war. After providing a brief overview of the history of The Hague Conferences of 1899 and 1907, I analyze how states used emotionally salient moral rules that emphasize intentions to create permissive laws of war, particularly with regard to artillery bombing, naval warfare, and the dropping of projectiles from balloons. I show how states used the intention/side-effect distinction to not only develop the notion of lawful military targets in international law, but also to ensure that aerial warfare technologies would not be permanently outlawed by The Hague Regulations. Finally, I show how the intention/side-effect distinction informed the idea of lawful military targets in ways that opened up rhetorical space for states to justify bombing policies that blurred the lines between limited and total warfare. Rather than this being merely a result of the interests of powerful states, I argue that it resulted, in part, from the moral intuitions that inform the laws of war. In Chapter 7, I examine the post-World War II development of IHL. I show how empathic concern for the victims of Nazi Germany encouraged states to agree that the Geneva Conventions needed to clearly outlaw the kinds of actions for which the Nazis became infamous. However, empathic concern had limits. In particular, I show that in the cases of aerial bombing and nuclear weapons, the United States and its allies used intuitive moral arguments and arcane legal principles to try to create a permissive regime that would not fundamentally conflict with US nuclear weapons policy. Finally, I examine how state and non-state actors used intuitive ethical arguments during the diplomatic negotiations that led to the 1977 Additional Protocols to the Geneva Conventions, which helped codify the principles of distinction and proportionality, thereby rendering IHL more precise, yet still fairly permissive. In Chapter 8, I summarize the theoretical analysis and empirical findings of this book. My findings show that the conventional moral intuitions we use to evaluate the ethics of killing in war do not just impose restrictions on the use of military force, but more problematically they also generate permissive effects that can sometimes make it difficult to safeguard civilians in warzones. The key to improving the laws of war lies in

16

A Theory of Moral Psychology and International Norms

using our abilities for perspective-taking and empathy to try to limit the permissive effects of IHL, and in the conclusion, I argue that equal consideration and respect for the moral autonomy and rights of civilians require states to follow more restrictive rules that ensure a more equitable distribution of risks between their armed forces in the field (and in the air) and the civilian population. In other words, I argue that in addition to using conventional moral intuitions to think about the morality of killing in war, we should use the principle of affected interests, which requires that moral agents act on principles that are justifiable to all affected parties. Although this would mean de-emphasizing the intention/ side-effect distinction, I argue that altering our legal institutions to more closely reflect the principle of affected interests is consistent with the overarching theory of moral cognition and emotion that I defend in this book. Indeed, the argument that I develop in the conclusion suggests that we have strong moral reasons to be just as concerned about unintended civilian fatalities as we are about intended civilian fatalities. Although our moral brains may have evolved to place a higher valence on intentional harms as opposed to unintentional harms, our capacity for empathy should motivate us to be more concerned about unintended deaths.

Moral Psychology, the Laws of War, and the Ends of International Justice Writing in the midst of the Thirty Years’ War, a conflict that would kill about 15–20 percent of the population of central Europe,38 the Dutch lawyer Hugo Grotius composed his seminal treatise on international law, De jure belli ac pacis. As Grotius explains, the goal of this book was to spell out the conditions under which states can permissibly wage wars, as well as what they are required to do in the context of war. Reflecting on his experiences, Grotius “observed that men rush to arms for slight causes, or no cause at all, and that when arms have once been taken up there is no longer any respect for the law, divine or human; it is as if, in accordance with a general decree, frenzy had openly been let loose for the committing of all crimes.”39 The response, for Grotius, was clear: to set limitations on what is permissible so that the violence of war can be “tempered with humanity.”40 In many ways, this book constitutes a theoretical and empirical defense of an understanding of morality that hearkens back to the Enlightenment tradition in moral theory and to more secular versions of natural law 38

Goldstein (2011, 26).

39

Grotius (1925, 20).

40

Grotius (1925, 861).

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theory. This idea may commit me to many more implications than I am willing to defend in this book. However, one overarching objective of this book is to show that one of the central insights of natural law legal theory, – i.e., that most humans have a shared moral conscience that shapes the content of international law – is largely consistent with the emerging science of moral psychology. For IR scholarship, this study suggests that much can be learned about the development of international norms by unlocking the nature of moral emotions and reasoning. For the practice of international relations, the implications are even more significant. By elucidating the ways in which moral cognition and emotions shape the content of international law – both its restraints and its permissions – this book sheds light on the successes and failures of IHL, highlighting areas where it can be improved.

2

Mapping the Mind Moral Psychology and International Humanitarian Law

In the early hours of October 3, 2015, American forces in Afghanistan accidentally bombed a trauma center run by the humanitarian organization, Doctors Without Borders (MSF), in Kunduz. Under IHL, hospitals are considered to be protected spaces, and so intentional attacks against them are war crimes. In the ensuing investigation of the Kunduz incident, US Central Command found that the bombing was the consequence of “a combination of human errors, compounded by process and equipment failures.”1 According to their report, on the night of October 2, 2015, Afghan forces planned to attack a Taliban-controlled site in Kunduz, and in the process, they requested air support from US Special Forces. When US forces “arrived…in the early morning on Oct. 3, 2015, they attempted to locate the Taliban-controlled target site. The Afghan forces provided the correct grid coordinates for the target site to the US Special Forces commander on the ground, who…relayed them to the aircrew through a Joint Terminal Attack Controller.”2 The aircrew “was initially unable to locate the target structure,” but when they entered the “grid coordinates…the system directed” them to bomb “an open field.” The crew then tried to “visually identify the target,” deciding to strike what they thought was a Taliban structure, “but was actually the MSF” center. Forty-two people were killed.3 In its official report on the incident, the Pentagon decided that even though sixteen US military personnel engaged in conduct that warranted “appropriate administrative or disciplinary action,” they did not commit any war crimes: “The Commander of U.S. Forces-Afghanistan concluded that certain personnel failed to comply with the law of armed conflict and rules of engagement. However, he did not conclude that these failures amounted to a war crime.”4 As the summary of the report stipulates, “the label ‘war crimes’ is typically reserved for intentional acts – intentionally targeting civilians or intentionally targeting protected 1 3

United States Department of Defense (DOD) (2016b). 4 DOD (2016b). DOD (2016b).

18

2

DOD (2016b).

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objects.”5 The bombing was deemed an accident because even though the crew intended to hit the target in question, it was working under the false impression that the hospital was in fact a lawful military target. As expected, the Pentagon report generated a firestorm of criticism – much of it from MSF. The critics charged that the bombing was, in fact, a war crime and that the US service personnel who conducted the strikes were let off with a slap on the wrists. Meinie Nicolai, the MSF President, claimed that “the threshold that must be crossed for this deadly incident to amount to a grave breach” of the laws of war “is not whether it was intentional or not.”6 The MSF incident reveals several facts about IHL and its implications for battlefield conduct. Not only does it call attention to the principal dividing line between lawful attacks and war crimes – intentionally targeting civilians and civilian objects is one defining feature of a war crime – but in addition, it illustrates precisely what constitutes an intentional killing in the first place. According to the Pentagon report, an intentional attack on a civilian is one in which the perpetrator harms the person in question and knows that the person is in fact a civilian.7 Moreover, the incident reveals that there is disagreement over what constitutes a grave breach of IHL. For MSF, the failure to take the proper precautions to spare civilian lives constitutes a grave breach of IHL, but for the US military, only an intentional attack on civilians is sufficiently weighty to be considered as a grave breach of IHL.8 Yet, for civilians on the ground – and their loved ones who are condemned to suffer the aftereffects – these distinctions between intended and unintended, foreseen and unforeseen, may seem immaterial, for what matters to them are the effects of the military operation in question. As military lawyer W. Hays Parks aptly notes, “the distinction between intentional and unintentional injury or death is lost on the civilian who suffers that injury.”9 Why, then, does IHL make these distinctions, and what implications does this have for our ability to protect civilians through the force of law? In this chapter, I argue that these kinds of judgments about what is just or unjust, legitimate or illegitimate, and lawful or unlawful, are driven largely by cognitive–emotional reactions rooted in the evolved structure of the human mind. More specifically, I defend two key points. First, I argue that evolved moral sentiments and cognitive heuristics have

5 7 8 9

6 DOD (2016b), emphasis in original. Quoted in Doctor’s Without Borders (2016). Still, Article 50 of Additional Protocol (I) holds that in cases of doubt, the person “shall be considered to be a civilian.” See Article 147 of the Fourth Geneva Convention for a definition of “grave breaches.” Quoted in Neer (2013, 190).

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A Theory of Moral Psychology and International Norms

shaped not only modern IHL, but also the development of civilian protection norms in human societies more generally – both Western and Eastern. I claim that a more naturalistic account of moral cognition and emotion will enable IR theorists to better explain the cultural evolution of the laws of war across human societies and civilizations. I argue that cognitive and affective orientations bias the evolution of the rules of war toward instituting principles that are similar in kind to the modern principles of distinction and proportionality in IHL. Moral and legal principles that safeguard civilians are likely to emerge and remain durable because they are affect-backed, by which I mean that they are backed up by powerful emotional reactions.10 Second, I argue that even though the laws of armed conflict do have restrictive effects that safeguard civilians from certain injustices, they also have permissive effects that enable states to kill civilians on a fairly large scale, albeit incidentally and often without intent. I argue that these permissive effects are rooted in the structure of moral beliefs and emotions, not just in the interests of powerful states, as realists and critical legal theorists argue. When states negotiate the laws of war in international diplomatic conferences, or when they develop strategical and tactical doctrines designed to ensure that their military practices are compliant with IHL, they do in many cases try to sincerely make sure that civilians are granted certain protections. However, the moral arguments and principles that they put forth create space for decision-making discretion. Before I move on, three key points of clarification are in order. First, in saying that civilian protection norms are “durable,” I mean to say that they are relatively long-lasting once they emerge, not that they are always effective in practice. Indeed, as recent research has shown, the effectiveness of civilian protection norms varies quite dramatically by case and over time.11 That said, if they are to be thought of as norms at all, they should have some reasonable effect on behavior, even if it is less than full compliance. Second, in saying that civilian protection norms are “affectbacked,” I do not mean to imply that affect by itself is the only factor that explains why certain norms are durable. To be sure, the most durable norms are those that benefit from a combination of affective, cognitive, strategic, and cultural considerations. My claim is simply that affective reactions tend to condition the initial emergence of civilian protection norms and they sustain the reasoning and argumentative efforts to

10 11

Nichols (2002). Morrow (2007, 2014); Morrow and Jo (2006); Carpenter (2006); Bellamy (2012); Downes (2008); Valentino, Huth, and Croco (2006); Fazal and Greene (2015).

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improve IHL after major atrocities – e.g., World War II and the Holocaust played a major role in International Committee of the Red Cross (ICRC) attempts to update and strengthen the Geneva Conventions. Third, although emotional responses often provide the impetus for efforts to create positive norms that protect innocent people in war,12 my theory does not discount the importance of reason, deliberation, and argument. Indeed, as I clarify later, emotions, reason, and argument play an interactive role in the evolution of moral and legal norms for protecting noncombatants. Not only do reasoning and debate shape how people apply cognitive–emotional heuristics to novel situations that outstrip evolved programming, but so too they can get people to reflect on the negative implications of their evolved cognitive– emotional architecture. For example, the impulse toward revenge may be important for sustaining reciprocity, but, left unchecked, it can lead to extreme cruelty and violence, not to mention genocide. Although we cannot expunge our evolved cognitive and emotional architecture, we can use our capacities for reason and argument to create social institutions that control their worst excesses and redirect them toward rationally justifiable ends. Reason may be informed by the passions, but it is not their slave. This chapter is organized as follows. In the following section, I briefly explain why existing theories of norm emergence and evolution in IR theory are lacking and why they must be integrated with a more naturalistic theory of moral beliefs, emotions, and arguments. Second, I argue that the laws of war, especially the principles of distinction and proportionality, are rooted in the cognitive and emotive wiring of the human mind. In particular, I argue that evolutionary pressures furnished the mind with capacities for perspective-taking and empathy, and that these capacities affected the development of the laws of war by encouraging people to accept limits on the treatment of foreign civilians. I then show that the core principles of IHL are rooted in emotional intuitions that govern how people judge the infliction of intentional harm. Intuitive precepts like the intention/side-effect distinction may have varying cultural expressions, but these precepts are largely shared rather than culturespecific schemas. Finally, I explain how this theory is consistent with cultural variation and normative change by discussing the relationship between individual moral intuitions and the thick social processes through which the law is created.

12

For a similar argument applied to human rights norms, see Hunt (2007).

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A Theory of Moral Psychology and International Norms

Norm Emergence and Cultural Evolution in International Theory In IR theory, there are three traditional approaches to explaining the design of international law. Realists and rationalists argue that states design international norms to advance their interests. While realists argue that powerful states create international laws to secure their political interests, rational choice theorists argue that they create institutions to overcome collective action problems and to enforce mutually beneficial agreements.13 Finally, constructivists believe that international law is a social creation that reflects the shared values of international society.14 As noted in Chapter 1, there are three main limitations with existing scholarship on international norms. First, existing IR scholarship does not fully explain why states and nonstate actors create civilian protection rules in the first place, nor does it explain why civilizations that are otherwise very different nevertheless all converged on moral norms for protecting civilians in war. Second, existing IR scholarship does not account for the content of the laws of war, specifically the focus on intended/unintended harms. Finally, existing IR scholarship does not fully account for the permissive effects of the laws of war.

Realism: Power Politics and the Laws of Armed Conflict Realists believe that the distribution of power influences the content of international norms. On their view, powerful states design international norms and institutions to maintain international order on their own terms. International law might “work,” but it is designed to work in accord with the interests of powerful states. In international negotiations, states use Machiavellian stratagems to persuade other states to endorse specific policies, but in the end, such stratagems are intended to mask their goals and interests, which usually amount to maintaining or improving their military or economic power. Critical legal theorists generally accept this view. As Chris Jochnick and Roger Normand argue, states deliberately created permissive laws of war that privilege military necessity, and they did this to legitimate their military practices. For critical legal theorists, law is a technique of power in that it stifles potential criticisms: “law functions ideologically to both reinforce ‘shared 13 14

Mearsheimer (1994/1995); Krasner (1999); Keohane (1984); Koremenos, Lipson, and Snidal (2001); Morrow (2014). Wendt (1999); Brunnee and Toope (2001); Finnemore and Toope (2001); Finnemore (2003); Reus-Smit (2004); Tannenwald (2007); Hurd (1999).

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values’ and to impress upon people a sense of obligation to the existing order. More than simply supporting or deterring a particular act, law influences the public perception of an act by imbuing it with the psychic trappings of lawfulness.”15 Indeed, for critical theory, law and morality are both crucial forms of power: power works its effects not just through material coercion, but by shaping how people think – an idea that classical realists such as E. H. Carr generally endorsed.16 With respect to IHL, realism and critical theory provide some important insights. More so than any other states, powerful states possess the material, institutional, and ideological power to manipulate the law in ways that suit their interests. Yet, realism and critical theory have three key shortcomings. First, they do not explain why civilian protection norms have arisen in civilizations that are materially and culturally different. Power politics clearly shapes the evolution of the norms of war, but in the historical chapters that follow, I show that moral beliefs and emotions play a more important role than realism and critical theory recognize. Second, these theories do not explain how powerful states are able to persuade others to adopt particular norms. On the theory I develop here, some norms are attractive because they resonate with broadly accepted moral beliefs and emotions. Further, the archival evidence that I review in Chapters 6 and 7 shows that diplomats were often sincere in wanting to protect civilians from intentional killing, even though this meant creating permissive norms that allowed for unintentional fatalities. Finally, realism and critical theory underemphasize the restrictive effects of the laws of war. Even though the permissive effects of IHL are problematic, its restrictive effects do afford civilian populations significant legal protections.

Liberal Institutionalism: The Rational Design of the Laws of Armed Conflict Rationalists argue that states design international institutions to overcome coordination and cooperation problems. With respect to IHL, rationalists argue that the laws of war are equilibrium institutions that create stable expectations about how wars should be fought. James Morrow argues that states create laws of war to restrain the untoward consequences of war. Furthermore, he argues that rational choice institutionalism best explains when states comply with or violate the law: states comply with the laws of war to stave off reciprocal enforcement 15

Jochnick and Normand (1994, 57).

16

Carr (1939); Babik (2013).

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A Theory of Moral Psychology and International Norms

from their treaty partners. In short, the laws of war reflect “legal bright lines” that states create to avoid the inconveniences of anarchy, and states comply with the law, when they do, in the expectation that other states will reciprocate.17 Rationalism gives us a parsimonious way to explain why states develop international norms to limit the violence of war. However, it has three key shortcomings. First, it does not explain why human societies converge on similar rules of war. I do not disagree that the laws of war help resolve collective action problems, but the evidence shows that they do not always arise for this particular reason. Rationalism holds that states design the laws of war to secure their political interests – e.g., to protect their own citizens and soldiers. But in many cases, states have to be persuaded to endorse humanitarian laws of war, often by morally committed nonstate actors.18 For example, in Chapter 5, I examine how a medieval social movement known as the Peace of God led to the development of the principle of distinction in Western Europe. Second, rationalism does not explain the content of IHL. As I pointed out earlier, IHL reflects the intention/side-effect distinction, which holds that deliberate killings are worse than unintentional killings. My claim is that the content and the design structure of the laws of war track emotional reactions, not just rationalistic calculations. In the chapters that follow, I provide two kinds of empirical evidence to back up this claim. First, some rules of IHL contradict the rationalist view that the laws of war are designed to facilitate reciprocity. As I discuss in Chapter 7, IHL does not permit reprisal killings when it comes to civilians, nor does it permit states to kill prisoners of war (POWs) or to torture them when their own soldiers are tortured. This suggests that the framers of IHL were concerned about civilian casualties and POW rights as such, not just protecting their own citizens from harm. Of course, this concern was not equally shared by all, and indeed the ICRC played the most significant role in outlawing reprisal as a tool of enforcement. Nevertheless, it does show that civilian protection rules are not just based on rational responses to collective action problems: they also have a strong moral dimension that is not reducible to the calculation of expected benefits and costs. Second, I discuss textual evidence and empirical cases that strongly suggest that rules against targeting civilians are based on gut-level emotional responses. As I discuss in greater detail later, the idea that civilians should not be intentionally targeted is based on gut-level emotional reactions to the thought of physically killing 17 18

Morrow (2007, 561). Also see Posner (2003, 2010). Finnemore (1999); Price (1998); Petrova (2016).

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someone in an up-close-and-personal way.19 International norms concerning the use of military force closely track this idea. For example, IHL clearly prohibits the kind of personal killing campaigns that took place during the My Lai massacre in Vietnam, and it also prohibits the torture of POWs. Yet, as I discuss in Chapter 6, the 1907 Hague Conventions did not prohibit attacks on merchant ships on the high seas except at the beginning of war, and one reason for this was that attacks on merchant ships – which usually just involved confiscating property – were not perceived as being nearly as objectionable as mass killings of civilians. Mass killing campaigns are highly emotionally salient, and this is why international law singles them out as particularly egregious. The problem is that rationalists generally ignore emotions. With respect to the laws of war, they believe that POW protections, civilian immunity norms, and rules outlawing perfidy arise out of rational decisions to resolve collective action problems. Emotions play no role in explaining the content of the laws of armed conflict. My claim is not that the laws of warfare are unresponsive to collective action problems, but rather it is that in order to explain the content of the laws of warfare, emotive response patterns need to be brought into consideration. Of course, I should point out that my theory of moral cognition and emotions is not completely at odds with rationalism. To be sure, the view that moral and social norms are based on evolved emotional responses actually provides a more compelling explanation of phenomena like diffuse reciprocity than does the view that they are based on rational cost–benefit calculations. Specific reciprocity implies that people will comply with social norms out of a concern for some direct and immediate benefit, but diffuse reciprocity implies that people comply with social norms even when there is no immediate benefit, but rather there is a long-term benefit associated with cooperation. Rationalists argue that in the case of diffuse reciprocity, people hope to reap the benefits of long-term cooperation. The problem with this view is that people vary in the degree to which they are willing and able to take on short-term costs to achieve long-term benefits. Indeed, people often care more about the present than they do about the future.20 The theory of moral cognition and emotion that I put forth here helps to explain why people will often comply with norms that only bring long-term benefits. Decision making is often much more intuitive than the rationalist view of homo economicus would have us believe.21 Hence, far from causing people to act 19 21

20 Greene et al. (2001). Pinker (2011, 592–611). Pouliot (2010, 11–51); Hopf (2010); Bowles and Gintis (2011); Holmes and Traven (2015).

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irrationally, moral intuitions can function as heuristic shortcuts that make it easier to comply with societal norms that, in the long run, bring diffuse benefits. Finally, rationalism does not provide a compelling explanation of the permissive effects of IHL. Rational design theorists do recognize that states design laws that allow for decision-making discretion and sovereign prerogative.22 But the permissive effects of IHL actually conflict with the idea that states rationally design international laws and institutions. Not only are the laws of armed conflict less-than-fully-rational in the sense that rational actors concerned to protect their own self-interests would probably create a more efficient set of norms, but the permissive effects of the laws of war can actually threaten the integrity of the regime. For example, consider the rationalist view that states create international laws to operate as legal bright lines that clearly delineate acceptable from unacceptable behavior. IHL creates a legal bright line with intended attacks, but it technically permits collateral damage. This principle makes intuitive sense, but it can be difficult to apply in practice, specifically because it can be easily misinterpreted and manipulated by enemy forces. For example, during Operation Rolling Thunder in Vietnam, US decision-makers directly prohibited intentional attacks on civilian targets, and in fact, during discussions over escalating the targets to include attacks on petroleum, oil, and lubricant facilities in 1966, Robert McNamara noted that the “final decision for or against will be influenced by extent they can be carried out without significant civilian casualties.”23 Still, inadvertent civilian deaths generated significant criticisms of US foreign policy in Vietnam.24 But the criticism, in this case, was not just that US bombings caused inadvertent deaths; rather, it was that the United States intended to kill civilians, and thus violated the law. By causing a high number of incidental civilian casualties – both during Operation Rolling Thunder and during the Linebacker campaigns in 1972 – the United States took measures that unwittingly led to accusations that it had targeted civilians intentionally.25 The problem for rationalism is that the intention/side-effect distinction can lead to a lot of false positives, which could threaten the integrity of the regime. When unintended civilian deaths are high, the intuitive assumption on the part of those on the receiving end will likely be that enemy forces have deliberately targeted their civilian population. And even though the laws of war do not sanction reprisals, there will likely be a strong desire to exact vengeance on the enemy by harming their 22 23

Abbott and Snidal (2000); Koremenos, Lipson, and Snidal (2001). 24 25 DOD (2011, 124). DOD (2011, 177). Bellamy (2012, 173–182).

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civilians, which can potentially unravel the civilian protection regime. Morrow says that this is a problem of noise,26 but presumably rational states would have been able to predict and address this problem, perhaps by instituting casualty thresholds or by reducing the role that intentions play in the norms of war.27 As a matter of fact, this would be quite reasonable, given that decisions to comply with or violate the laws of war are usually made behind closed doors where intentions are kept secret. When individual soldiers kill civilians, the military justice system is designed to signal to other states that the civilian deaths in question were not a result of an explicit policy. However, when large numbers of civilians are killed in airstrikes, and there is no clear evidence one way or the other as to whether the state intended to target them, enemy officials may draw dire conclusions, even at the risk of making a mistake. In short, even though states might have good reasons to make a distinction between intended and unintended killings (e.g., intentional killings signal that a state cannot be trusted to uphold the law), rational states would have created a far more consequentialist framework of IHL than states in fact created. Of course, this is not to say that IHL is irrational, but rather it is to say that a more plausible way to interpret IHL is that it is an outgrowth of cognitive heuristics and emotions, not just rational cost– benefit calculations. Constructivism: Cultural Evolution and the Social Construction of the Laws of Armed Conflict Constructivism holds that individual agents shape cultural norms, and that cultural norms, in turn, shape the identities and interests of individual agents. Agents and structures are mutually constituted.28 As Martha Finnemore and Kathryn Sikkink argue in their classic article on international norms and political change, cultural norms emerge out of the activities of individual norm entrepreneurs who deliberately seek to change domestic and international institutions.29 On the other hand, cultural norms work their effects on social practices by influencing how people think. As Ian Hurd argues, states comply with international norms because they see them as legitimate, and they come to see them as legitimate through a process of internalization.30 For most 26 27

28

Morrow (2007, 2014). The notion of crimes against humanity does institute a kind of casualty threshold: mass killings have to be part of a systematic policy to be regarded as crimes against humanity. However, there are no casualty thresholds when it comes to the principles of distinction and proportionality. See Dill (2015, 87). 29 30 Wendt (1999). Finnemore and Sikkink (1998). Hurd (1999).

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constructivists, the mind is like a blank slate that “imports” cultural ideas from the external social environment and uses them as mental models for how one should behave. Human societies may have some norms in common, but constructivists argue that we do not need to root theories of cultural evolution in assumptions about evolved cognition and sentiments. Similarities in cultural norms do not imply that there are similarities in the cognitive micro-processes upon which cultures supervene. Cultural norms and ideas are shared mental representations that can arise and spread in a wide variety of ways – e.g., through material constraints,31 adaptive success in a competitive environment,32 and imitation and social learning.33 In addition, recent research in cultural anthropology and cognitive neuroscience suggests that the brain evolved for culture,34 so it is not clear why IR scholars need to go down to the cognitive, or neural, level to explain similarities in cultural norms. Constructivist scholarship in IR has produced powerful insights into the dynamics of norm construction and diffusion, and this work gets by with fairly minimal assumptions about cognitive psychology. Why should this work turn to evolved cognition and emotion? There are three reasons. First, all social science theories make assumptions about agency, and these assumptions should be consistent with the facts of social psychology and cognitive neuroscience, at least the well-tested and replicated facts. Recent findings in cognitive psychology and neuroscience show that the mind uses intuitive heuristics to cast judgment on a wide range of issues, from economic decision-making, to moral judgments and the law, to decisions to go to war.35 Intuitive heuristics are fast, automatic, and inaccessible to consciousness, and as a result, they bias individual decision-making in ways that people do not directly control. If individual actors have some control over the construction of international law and culture, as many constructivists think they do, then we should expect intuitive moral judgments to seep into the content of international law. Therefore, building a theory of international law from a more naturalistic foundation will place IR on a firmer scientific basis. This does not mean that all aspects of international culture and law can be reduced to neuroscience, and indeed findings from neuroscience indicate that a mind-culture interactionist approach is the most defensible perspective

31 33 35

32 Snyder (2002). Florini (1996). 34 Wendt (1999); Richerson and Boyd (2005). Downey and Lende (2012). Holmes and Traven (2015); Holmes (2015); Kahneman (2011); Greene (2013); Sunstein (2009); Rosen (2005).

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on mental content and morality. There are some basic principles that all cultures share – among them principles for regulating intentional harms – but there are also some significant cultural differences. I am not a strict moral universalist, if by this one means that all moral principles are universally shared.36 Second, as Sikkink suggests in The Justice Cascade, theories of norm emergence usually make assumptions about the motivations of social agents – especially norm entrepreneurs. Cultural ideas are macro-level representations, but they usually arise through the dedicated action of motivated individuals. To inject new ideas into the public sphere, individual norm entrepreneurs need to make them sink in, and this requires rhetorical action that appeals to audience emotions and moral beliefs. Finnemore argues that empathy is an important tool in the argumentative repertoire of norm entrepreneurs, and Neta Crawford shows how political activists used empathy to increase respect for the humanity of slaves and colonial subjects.37 Empathy needs to be engaged to motivate people to want to alter the normative landscape of the international system. As a result, we need a theory of agency that builds on assumptions about the fundamental cognitive–emotional repertoire of individuals. But constructivists adopt an ambiguous model of agency. Cultural diffusion theorists hold that agent intentions and preferences are socially constructed all the way down. However, their explanations of the process of norm emergence often build upon assumptions about basic human emotions and beliefs. As an example, consider Sikkink’s discussion of the norm of individual criminal accountability for human rights abuses in The Justice Cascade. In this book, Sikkink defends a theory that she refers to as agentic constructivism, which focuses on how agents promote new ideas and practices even though their interests are socially constructed. Yet, throughout the book, she is at pains to explain precisely where the concern for justice comes from, and in the end, she intimates that it may have something to do with evolved moral sentiments and beliefs. As she puts it, “core human rights norms [resonate] so profoundly in the world in part because of [an] intrinsic appeal.”38 My proposal is that we cannot have it both ways. If we wish to develop an agent-centric theory of cultural evolution, one that is consistent with the fact that individual agents play a major role in the development of cultural norms, we should not assume that agent preferences are socially constructed all the way down while also thinking that the process of norm emergence is dependent on pan-cultural moral capacities such as 36 37

For a useful discussion of different types of universalism, see Brown (1991). 38 Finnemore (2003); Crawford (2002). Sikkink (2011, 262).

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empathy and the desire for justice. My perspective is that we should start from fundamental moral capacities and intuitive heuristics, and then move our way up to macro-level cultural representations and institutions. Cultural institutions do influence how we think, but my view is that cultural institutions build upon shared cognitive rules and emotions.39 I do not deny that much of international relations is socially constructed, but in my view, a deeper appreciation of the moral aspects of human nature can advance our knowledge of world politics. To some extent, constructivists do recognize the need to build theories of international norms on assumptions about human psychology. Not only do Finnemore and Sikkink think that empathy is important for explaining the evolution of international norms, but in addition, Alexander Wendt suggests that theories of agency should be based on material factors such as basic human drives.40 However, Wendt argues that when it comes to things like moral ideas and culture, “biology matters relatively little.”41 My suggestion is not that we should reject the constructivist view of agency. Rather, it is that constructivists should adopt a thicker account of human nature – one that recognizes that some moral ideas and sentiments are substantially innate, or programmed prior to experience.42 In response, many constructivists might concede that the mind and the brain partly influence social interaction. This is part of the rump materialism that individuals bring to social interaction.43 However, the hardware of the brain and nervous system is only an input into social interaction. It is the purely social aspects of human interaction – discussion, argumentation, diplomatic practices, and so forth – that do all the important explanatory work in shaping the process of norm emergence. In cases where states largely agree about the rules of war, then the kind of cognitive and emotional capacities that I explore in the rest of this chapter can help explain cross-cultural similarities. But what about cases where people disagree? When people disagree about the rules of war, they either abide by different standards, or they get together to work out their disagreements. In the latter case, the operative causal mechanism is diplomatic talk, or what Jürgen Habermas refers to as the power of the better argument.44 Moral intuitions are an input of sorts, but they don’t explain norm creation.

39 41 43 44

40 Boyer and Petersen (2012). Wendt (1999, 130–135). 42 Wendt (1999, 133); also see Crawford (2009). Haidt and Joseph (2007). Wendt (1999, 130). I am indebted to one of the anonymous reviewers for raising this criticism. Habermas (1990); Risse (2000); Mitzen (2005); Linklater (2005, 2007); Johnstone (2003).

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Although a fuller response to this argument can only be had once my theory is on the table, a few brief comments are in order. First, I do not discount the causal significance of communicative reasoning. Not only is communicative reasoning a key mechanism whereby shared moral intuitions become institutionalized into positive international law, but it also helps people work out political and moral disagreements. With respect to moral disagreement, communicative reasoning performs three key functions in the theory. First, it provides the means through which people apply cognitive–emotional heuristics to novel situations that outstrip their evolved programming. Human beings did not evolve to think about the ethics of strategic bombing, nuclear weapons use, or cluster munitions, so when they reason through these issues, they have to find a way to make their evolved intuitions applicable to a novel domain. Communicative reasoning aids this process. Second, communicative reasoning – particularly the kind in which lawyers routinely engage – enables people to make vague intuitions more precise, and therefore more applicable to practical situations. Conscious reasoning enabled the participants of the 1899 and 1907 Hague Peace Conferences to converge on a definition of lawful military targets that effectively made the intention/side-effect distinction more applicable to the domain of naval warfare. Finally, although communicative reasoning can sometimes override our moral intuitions, much of what goes on in diplomacy is an attempt to frame arguments in ways that others will accept, which ordinarily requires giving reasons that pump different intuitions. This suggests that adopting a naturalistic view of moral cognition and emotion will enable constructivists to better explain what goes on in the thick social process of international diplomacy. Third, building on the theory of evolved moral cognition and emotions will not only enable IR scholars to better explain patterns of norm emergence and cross-cultural similarities, but it will also heighten the explanatory power of existing theories of institutional development and design. In the chapters that follow, I show how building on the naturalistic theory of moral cognition and emotions that I elucidate in the following section can improve constructivist and rationalist theories of norms. More specifically, I argue that it will help IR theorists better account for the cross-cultural timing of emergence and the durability of civilian protection rules. Not only does the constructivist view that all moral beliefs are rooted in culture make it difficult to explain how different societies can converge on similar norms of war, but it also makes it harder to understand how norms emerge, spread, and remain durable within particular civilizations. Perhaps one might argue that contextual factors – whether material or ideational – make it more likely

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that some societies will converge on civilian protection norms. However, I argue that incorporating a more naturalistic account of moral cognition and emotion will enable IR scholars to better understand how sociological and contextual variables generate convergence on civilian protection rules: they create support for stronger norms by working through the mind, thereby engaging shared moral sentiments. For example, innovations in technology such as photography made it possible for anti-war activists during the Vietnam War to build broad support for condemning the use of napalm by the US military.45 I conjecture that affect-backed norms are more likely to arise and persist than affect-neutral norms. Civilian protection rules are prevalent because they fit with cognitive– emotional heuristics that govern how people think about the ethics of killing in war. As such, while it may be true that cultural similarities do not in and of themselves imply that political scientists need to “go cognitive” or “go neural,” going cognitive and neural can improve theories of cultural evolution in ways that go beyond explaining transcultural similarities. Theory of Mind: A Naturalistic Theory of Moral Cognition and Emotion Human cultures are striking in their variety. Anyone who has stepped foot in a foreign culture or tried to speak with someone who speaks another language is all-too-familiar with this self-evident fact. And yet, human beings are not all that different from one another. They all learn how to speak languages,46 they all care for their offspring (most of the time), and most of them believe that it is wrong to lie, cheat, steal, and kill in most circumstances.47 The social and political systems within which people live are highly diverse, but the elementary moral and social rules that people use to get by are strikingly similar: do not free ride on the hard work of others, do not harm innocent people for no reason, shun or punish those who cheat on social agreements, share common resources with friends and family, etc. How is it possible to account for the immense richness and diversity of human cultures while also explaining the emergence of common norms? Since human behavior is motivated by psychological mechanisms, what must the mind be like such that human cultures have these immense differences and similarities? There are two broad responses to these questions. One view posits that individuals are born with general learning mechanisms that enable them 45 47

Neer (2013). Brown (1991).

46

Chomsky (1965, 1986, 2007, 2009); Jackendoff (2007).

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to pick up on relevant features in their material and social environment. With respect to moral rules, these mechanisms enable people to internalize the kinds of norms prevalent in their society. People internalize rules that prohibit inflicting harms on innocent persons through variable levels of punitive enforcement on the part of authority figures (e.g., parents and teachers), by imitating the behavior of others, and so on. When it comes to moral and social judgments, the mind is, for all intents and purposes, a blank slate. There is no innate moral faculty, and there are no innate cognitive biases or deontic rules. Some rules may be similar across cultures, but this can be explained by reference to the fact that most societies confront similar challenges and that people have general learning mechanisms for internalizing moral norms.48 Moreover, emerging work on neuroplasticity suggests that neural networks are sensitive to cultural variations and that the social brain is overwhelmingly flexible. In this view, moral norms are mere social conventions, not expressions of broadly universal principles.49 Another view, which is the one that I adopt here, holds that moral intuitions are based on domain-specific learning mechanisms that constrain how humans internalize social norms. On this view, the mind is composed of a set of computational processing systems called “modules,” each of which is devoted to specific tasks and capacities. Evolutionary psychologists believe that these domain-specific mechanisms evolved in response to recurrent situations in the ancestral environment of the species.50 This is true for a wide variety of psychological mechanisms, including those that facilitate fight-or-flight reactions and those that facilitate coalitional affiliations.51 The modular approach to mental functioning explains how certain capacities, e.g., the capacity to detect cheaters or the ability to understand the intentions of others52 are programmed in the mind. Jonathan Haidt and Craig Joseph describe cognitive modules as “evolved…processing system[s] that [were] designed to handle problems or opportunities that presented themselves…in the ancestral environment of [the] species. Modules are little bits of input/output programming, ways of enabling fast and automatic responses to specific environmental triggers.”53 Modules are like equalizers on a stereo system that provide a “first draft” of the mind, which is then calibrated through cultural learning and experience.54 48 50 51 52 53 54

49 Prinz (2007). Schwartz and Begley (2002); Crawford (2009, 277). Cosmides and Tooby (1994, 86). Haidt (2001); Lopez, McDermott, and Peterson (2011); Joyce (2006); Tooby and Cosmides (2010). Holmes (2013, 2018); Hall and Yarhi-Milo (2012). Haidt and Joseph (2004, 59–60). Haidt and Joseph (2007, 368); Graham and Haidt (2012); Haidt (2012).

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Psychologists and neuroscientists disagree over the extent to which the mind and the brain are modular,55 and even whether it is modular at all.56 Among those who defend some version of the modularity thesis, there is disagreement over whether moral cognition is manifested in a single computational module,57 in several modules,58 or whether it is instead manifested in a combination of automated mechanisms and higher-cognitive thought processes.59 Moreover, there is significant disagreement over how to incorporate each element of moral cognition, e.g., empathy, perspective-taking, moral emotions, conscience, condemnation, and culture.60 One important debate has to do with the question of whether moral judgments are grounded in rationality and reasoning processes, or whether they are grounded in emotional reactions.61 Here, I split the difference in these debates by claiming that there are three interrelated elements of moral cognition and emotion. First, people have innate abilities for perspective-taking and empathy. Perspective-taking and empathy are both crucial for moral and social development: individuals who lack the ability to empathize with or to see what the world is like from someone else’s perspective will have difficulty understanding what the world is like from a moral point of view. Furthermore, perspectivetaking and empathic concern play a crucial role in setting the dials of our moral equalizers (or fixing the parameters of our moral grammars) to recognize the moral interests of those outside our immediate circle of moral concern. Perspective-taking and empathy also induce people to act on behalf of others. This is the so-called empathy–altruism hypothesis: perspective-taking causes empathy, which in turn causes altruism.62 Second, while I am agnostic on the issue of whether there is a single computational module or a complex set of them,63 a growing body of evidence in cognitive psychology and neuroscience suggests that the brain is constituted by a set of automated mechanisms and deliberative reasoning processes and that these processes compete for control over moral judgments. This is the so-called dual-process theory of the mind. 55 56 58 59 60 61 62 63

Fodor (1983); Chomsky (2007); Cosmides and Tooby (1994); Sperber (1996); Buller and Hardcastle (2000). 57 Prinz (2007). Mikhail (2011). Fiske (1991); Rai and Fiske (2011); Haidt (2001, 2012); Haidt and Joseph (2007); Shweder et al. (1997). Greene et al. (2001); Greene (2013); Kahneman (2011); Patterson, Rothstein, and Barbey (2012). Haidt (2001); DeScioli and Kurzban (2009, 2013). Kant (1998); Kohlberg (1981); Habermas (1990); Mikhail (2011); Haidt (2001); Jeffery (2016). Batson (2011). Mikhail (2011); Haidt (2012); Fiske (1991); Rai and Fiske (2011).

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People often have quick intuitive reactions to emotional situations (e.g., the My Lai massacre or 9/11), and these reactions generate implicit moral judgments. However, people also have the ability to reflect on moral dilemmas. The automated mechanisms that govern our moral judgments are often highly emotional, but we can usefully think of them as operating in accordance with something like a grammar of moral principles. Here, I am suggesting that morality is like language in the sense that moral judgments are shaped by complex computational processes that operate below conscious thought and that we can construct rules, or grammars, to characterize how the process works. Although some theorists advocate a stronger interpretation of the linguistic analogy according to which moral rules are “engraved in the mind”64 in ways that precede emotional reaction patterns,65 here I argue that emotional responses play a more direct role in moral judgment. The analogy with language is used to help characterize the operations of the automated mechanism. It also provides a useful template for explaining how moral cognition is innate: just as children are “born knowing” the “constraints” on “human languages,”66 so too they are born knowing the constraints on human moral systems. Finally, in line with the dual-process approach to moral cognition, I argue that reason and emotion are both causally implicated in moral judgment, motivation, and behavior. Deliberative reasoning shapes how people respond to novel situations, and it also has the ability to recalibrate our moral equalizers through internal reflection and communicative interaction. To defend this theory of moral psychology, in the next subsection I define moral cognition and emotion, and I explain why moral intuitions conferred an adaptive advantage on individuals in the ancestral environment. In the second subsection, I explain how perspective-taking and empathy shape moral judgment, thinking, and behavior. Furthermore, I explain how they can induce people to condemn military operations that kill civilians. Next, I explore the grammar of moral cognition. I show that moral judgments are governed by subtle asymmetries in how people evaluate intentions: intended harms are perceived as morally worse than unintended side-effect harms. To explain how cultural differences are consistent with cultural similarities, I briefly explore how moral judgments are similar in kind to linguistic judgments. Although there are many differences between ethics and language, the idea that moral cognition is shaped, at least in part, by a shared grammar of principles helps square the knot between moral universalism and cultural

64 66

Mikhail (2011, 101). Fodor (1983, 4).

65

Huebner, Dwyer, and Hauser (2009); Carchidi (2020).

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relativism. I argue that this account of moral psychology has three observable implications for the evolution of civilian protection rules. First, I argue that emotional dispositions bias the evolution of the laws of war. Specifically, I argue that perspective-taking and empathy help calibrate our moral intuitions so that they apply to a wider range of individuals. By contrast, moral arguments for mass killings, genocide, or ethnic cleansing often attempt to draw distinctions between “us” and “them.” That is, they tend to involve dehumanized perception.67 Second, I argue that civilian protection rules are relatively durable once they arise because they are affect-backed. Third, I argue that in face-toface diplomacy, states use emotion-laden moral arguments to design the restrictive and permissive restraints of IHL.

Programming the Mind: Moral Judgments, Evolution, and Innateness There is a burgeoning consensus in the study of moral psychology that evolution played an important role in the development of moral systems, though precisely how and why is a matter for debate. One prominent theory is that morality facilitated cooperation in the ancestral environment, and it did this through cognitive and emotional propensities focused on altruism.68 Genetic predispositions that cause altruistic behavior conferred an adaptive advantage on individuals with those genes. Theorists who favor kin selection believe that people are altruistic because altruism favors the spread of altruism-causing genes to close relatives. Other scholars think that reciprocal altruism or group/multilevel selection mechanisms are better for explaining altruistic behavior toward non-kin. Reciprocal altruism involves taking on costs to oneself to benefit distantly related others under the expectation that these costs will be reciprocated.69 Group/multi-level selection models hold that people evolved to be altruistic because altruism favored the groups in which they evolved.70 Other scholars argue that altruism-centric theories ignore crucial facts about morality, such as the tendency for people to moralize issues that have very little to do with altruism. For example, some Muslims believe that it is morally wrong to draw pictures of Allah and the Prophet Muhammad, and Western just war theorists such as Hugo Grotius believed that it is wrong to destroy sacred objects in war.71 67 68 69 71

Harris and Fiske (2011). Trivers (1971); Joyce (2006); Monroe (1996); Bowles and Gintis (2011); Greene (2013). 70 Trivers (1971, 35). Bowles and Gintis (2011); Haidt (2012). Grotius (1925, 751–754).

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Likewise, secular liberals believe that racism and sexism are not just morally wrong, but repulsive. In short, moral judgments often reflect concerns over purity and impurity, and these have very little to do with altruistic behavior. Here, I make the case that the moral capacities and intuitions that are relevant for the laws of war are strongly related to evolutionary concerns for altruism, but that moral judgments facilitate social cohesion in ways that go beyond motivating otherregarding behavior. Moral cognition has four characteristics that are relevant for explaining why it might have evolved. First, moral judgments are categorical in the sense that they implicate beliefs about what must be done. Some moral philosophers believe that moral principles are hypothetical imperatives that require people to act in certain ways depending on whether they entertain particular objectives: e.g., “thou shalt not steal” is not a categorical imperative, but rather it depends on entertaining the goal of respecting property rights. If this view is right, moral principles are like rules of etiquette.72 Though morality may in fact be a system of hypothetical imperatives, when people are in the grips of a moral judgment, there is a felt sense that the action must be done of necessity. Second, moral judgments are objective in the sense that when people make them, they believe that their judgments depict extra-mental features of reality, either natural reality or supernatural reality. Our moral beliefs may in the end all turn out to be false,73 but at the time of judgment, most people take them to be descriptive, not just prescriptive. The judgment that “slavery is immoral” just seems to be right, and it seems to be right in the descriptive sense that it depicts something about the nature of reality. Third, moral judgments are action-orienting in two senses. First, moral judgments usually have an intrinsic, but not always decisive, motivational force. It is analytically possible for someone to judge that an action is right without having the internal desire to comply with this judgment,74 so moral judgments are not necessarily motivational.75 However, in most cases, moral judgments, especially those that are infused with emotional content, have strong motivational power. Second, moral judgments are often designed to influence the behavior of others, often through explicit 72 75

73 74 Foot (1972). Mackie (1977). Svavarsdottir (1999). Building on the work of Antonio Damasio (1994), philosopher Adina Roskies (2003) argues that ethical judgments are often decoupled from desires and motivations: people who suffer damage to the ventromedial cortex usually lack the desire to follow through on their moral judgments. However, this does not preclude their ability to make such judgments. People who suffer damage to these brain areas are able to make ethical judgments, but they are severely deficient in their ability to act on such judgments.

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or implicit persuasion.76 It is logically possible, but out of the ordinary, to judge that “killing civilians is wrong,” yet to have no motivation to act on this judgment and to be unconcerned about whether other people agree. Finally, moral judgments derive from two dissociable, yet interrelated systems: an automatic system of moral intuitions (System 1) which generates emotive responses and action-orientations; and a slower, more deliberative system of reasoning that focuses on whether specific moral claims ought to be accepted (System 2).77 While many scholars characterize the relationship between System 1 and System 2 as unidirectional, with System 1 being causally prior to System 2, later on in this chapter I suggest that it makes more sense to regard them as interactive. When people confront moral problems and dilemmas, their immediate responses are heavily informed by System 1’s emotional intuitions. Furthermore, research on motivated reasoning shows that people implicitly use System 2 reasoning to justify or reinforce their intuitive reactions. As Haidt puts it, people are like intuitive lawyers arguing a moral case, not intuitive scientists seeking moral truth.78 However, after spelling out the theory of moral cognition and emotion in more detail, I argue that we should regard the relationship between System 1 and System 2 as more interactive. Not only can individual reflection help people think through complex moral dilemmas where their intuitions are ambiguous, but individual and communicative reasoning can help to refine and develop their intuitive reactions. To understand the evolutionary importance of morality, we should ask why evolution might have favored a cognitive system with features like this. In short, a cognitive system that produces judgments, motivations, and actions with these features would have been exceptionally well-suited to resolve recurrent problems in the ancestral environment of the species. One such problem has to do with the ability to create and coordinate social alliances and coalitions.79 If we assume that the ability to maintain social alliances was necessary for the ancestral environment, early humans not only had to be able to motivate cooperative behavior, but they also had to be able to detect cheaters, to make credible commitments to punish transgressors, to persuade other people to accept social rules when disagreements arose, and to be able to evaluate the claims of others. Empathic abilities, along with System 1’s intuitional heuristics, 76 77 78 79

Stevenson (1937); Habermas (1984); Crawford (2002). Greene (2013); Kahneman (2011); Haidt (2012); Mercier and Sperber (2011). Haidt (2001, 820–822). Fiske (1991); Haidt and Joseph (2004); Tooby and Cosmides (2010); Lopez, McDermott, and Peterson (2011); Gat (2013); DeScioli and Kurzban (2009, 2013); Greene (2013).

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can generate cooperative action orientations when the benefits from cooperation are neither immediate nor palpable. For example, as Rousseau once said, “compassion is a natural sentiment” that “carries us without thinking to the aid” of other people.80 Because sympathy leads us to do what we have good evolutionary reasons to do – i.e., to altruistically aid our conspecifics – a capacity like this would have been very useful in the ancestral environment. Thus, the categorical, objective, and action-orienting features of moral thinking enable individuals to manage coalitional affiliations. System 2 reasoning capacities focus on making persuasive arguments to others and on assessing their arguments in turn. They enable people to make better decisions, but they also enable them to shape how others think and behave through persuasion. In the next several subsections, I explain in more detail how perspective-taking and empathy played an important role in the evolution of morality, and I explain how they affect judgments about the ethics of killing in war. In contrast to recent critics of empathy,81 I argue that perspective-taking and empathic concern are important for explaining how individuals come to place greater value on the lives of other people, especially those outside their immediate circle of concern. Empathy may have evolved specifically for intragroup social life, but it can be recruited to help expand the bounds of the self. Second, I sketch out the grammar of intuitive moral rules that shape how people think about the ethics of killing in war, and I pay specific attention to what I call the intention/sideeffect distinction. In each subsection, I outline the different moral capacities, I highlight their evolutionary significance, and then I explain how they each contributed to the evolution of the norms of warfare.

Perspective-Taking, Empathic Concern, and the Ethics of Killing in War Perspective-taking and empathy play a prominent role in moral reasoning, influencing not only how people make moral judgments, but also the degree to which they act on behalf of others, how they justify their moral claims, and how they define in-group/out-group identities. Perspective-taking and empathy are important for social life because they help people understand the mental states and experiences of others, and empathy, in particular, provides immediate motivating reasons for people to help others in need. Because social coordination and cooperation require that people be able to understand or predict how others will 80

Rousseau (1988a, 29); Churchland (2011).

81

Bloom (2016); Prinz (2011).

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act, and because they require prosocial motivation, it is plausible to conclude that perspective-taking and empathy were important for promoting social cooperation in the ancestral environment. Indeed, primatologist Frans de Waal has suggested that “empathy evolved in animals as the main proximate mechanism for directed altruism,” which is, in turn, important for survival.82 In IR theory, several scholars have begun to explore the effects of perspective-taking and empathy – ranging from experimental studies of how perspective-taking influences militant assertiveness and internationalism,83 to studies of how empathy affects patterns of interconnectedness and conflict.84 Yet, despite the increased interest in emotions research in IR,85 the effects of perspective-taking and empathy are far from clear. Part of the problem has to do with the fact that psychological variables are unobservable, and thus are difficult to measure accurately. Another problem is the so-called level-of-analysis problem: since empathy is an individual mental state, it is hard to see how it scales up to impact states, diplomacy, and international norms.86 Finally, in recent years some commentators have begun to question the value of empathy, claiming that not only is it unnecessary for morality, but that it can sometimes have pernicious effects.87 After briefly outlining how I conceptualize the notions of perspectivetaking and empathy, in this subsection, I provide a defense of empathy. In particular, I defend three points. First, I argue that, when appropriately targeted, perspective-taking and empathy can help reduce in-group biases that lead people to dehumanize others. Second, I suggest that a plausible extension of the empathy–altruism hypothesis is that empathy can increase moral condemnation of tactics that harm civilians. Third, I argue that although “empathy skeptics” such as Paul Bloom (2016) and Jesse Prinz (2011) are right in saying that empathy can sometimes lead people astray, they ignore the degree to which properly targeted forms of empathy can increase the extent to which people morally value the lives and well-being of others. Empathy can sometimes lead people to overlook impartial considerations of justice – empathizing with the one can lead people to overlook the interests of the many – but it can also encourage people to take cognizance of interests that they might otherwise totally ignore.

82 84 85 86 87

83 De Waal (2008, 282). Kertzer and Renshon (2015). Linklater (2007, 2010); Head (2012, 2016); Holmes and Yarhi-Milo (2017). Bleiker and Hutchison (2008); Mercer (2010); Crawford (2000); Hall and Ross (2015); Jeffery (2016). For a compelling response to this problem, see Crawford (2014a) and Holmes (2018). Prinz (2011); Bloom (2016).

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Perspective-Taking and Empathic Concern: A Conceptual Mapping. Perspective-taking and empathy are strongly related, and in fact many scholars see them as two components of an underlying psychological construct. According to Mark Davis, “empathy in the broadest sense refers to the reactions of one individual to the observed experiences of another,”88 a definition that reflects Adam Smith’s idea of sympathy in The Theory of Moral Sentiments. In this definition, empathy is similar to perspective-taking; it is a cognitive capacity that involves taking on the emotions or beliefs of other people, often in response to judgments about what they may be thinking or feeling.89 This definition of empathy is fairly common in psychology and neuroscience, not to mention IR.90 For example, neuroscientists Tania Singer and Claus Lamm note that empathy involves an isomorphic relationship between the thoughts or feelings of one individual and another as well as a causal relationship between those thoughts and feelings. For example, when children feel fearful when their parents exhibit signs of fear or distress, they experience a kind of empathy: not only do they experience the same emotion as their parents, but their reactions are caused by their parents’ reactions. However, some scholars argue that there are important differences between these two constructs. Whereas perspective-taking is a cognitive or emotional capacity, empathy can also be understood as a mental state of concern for others. For example, Jamil Zaki and Kevin Ochsner claim that empathy often involves experience-sharing and prosocial concern.91 Given these conceptual disagreements, the most tractable way forward is to define empathy and perspective-taking as two different constructs. As Daniel Batson aptly points out, there is “no clear basis…for favoring one” definition over another, and so in this situation, the best thing to do is to “make clear the labeling scheme one is adopting, and use it consistently.”92 To maintain definitional clarity, in this chapter I define perspective-taking as having two basic components: (1) an ability to understand the thoughts and feelings of other individuals and groups; and (2) an ability to place oneself in the position of others – i.e., to take on their thoughts, feelings, and intentions. Moreover, there are two types of perspective-taking: egocentric and other-regarding. Egocentric perspective-taking has to do with placing myself in the position of others. When I think about what I would do if I were President of the United States, I engage in egocentric perspective-taking. However, when I think about what it might be like to be in the shoes of President Joseph Biden, and to experience his thoughts and feelings, I experience other-regarding 88 90 91

89 Davis (1983, 113). Davis (1983, 115). Singer and Lamm (2009); Singer and Leiberg (2009); Holmes and Yarhi-Milo (2017). 92 Zaki and Ochsner (2012). Batson (2011, 20).

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perspective-taking. Although perspective-taking can lead to empathy, here I follow Batson in defining empathy as empathic concern, which is an “other-oriented emotion elicited by and congruent with the perceived welfare of someone in need.”93 For example, if my daughter is in pain, and I too feel a sense of pain that is elicited by and congruent with her perceived welfare, I feel empathic concern. Further, there are two main types of empathy. Dispositional empathy is a stable personality trait that makes some people more able to empathize with others. These people have an easier time thinking about what the world looks like from someone else’s perspective, and they are much better at empathizing with and feeling compassionate toward others. By contrast, state empathy is a short-lived mental state of concern for the well-being and needs of others. In psychology experiments, researchers induce state empathy by presenting subjects with hypothetical stories of people in need and by asking them to take the perspective of the person in question. For example, Batson and his colleagues have successfully induced empathic concern by having research subjects read a fictitious story about “Katie Banks,” a college student who has trouble caring for her family when her parents die.94 The results show that when subjects are given perspective-taking instructions, they are more likely to report feeling empathic toward Katie. Hence, perspective-taking causes empathic concern. The Empathy–Altruism Hypothesis and the Ethics of Killing in War. Perspective-taking and empathy have two important psychological effects that are relevant to the development of the laws of war. First off, encouraging people to take on the perspective of others increases feelings of empathic concern, and this, in turn, causes altruism – defined as otherregarding behavior done for the sake of improving the welfare of other people. This is the so-called empathy–altruism hypothesis, i.e., that empathic concern increases the tendency to care for and act on behalf of others in need.95 According to Batson, empathic concern has two causal mechanisms: “(a) perceiving the other as in need[;] and (b) valuing the other’s welfare.”96 Unfortunately, it can be difficult to encourage people to value the well-being of others. Imagine, for example, trying to get a neo-Nazi to feel empathetic toward Jewish people. Since neo-Nazis do not already value the well-being of Jewish people, it is likely quite difficult to get them to feel empathic toward Jewish people, and it is probably even harder to 93 94 95

Batson (2011, 11–12). Batson, Early, and Salvarani (1997). For a similar approach, see Wood, James, and Ciardha (2014). 96 Batson (2011). Batson (2011, 44).

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get them to be altruistic toward them. This brings us to the second main effect of perspective-taking and empathy. Perspective-taking and empathy tend to reduce in-group/out-group biases. Since well-known cases of civilian victimization usually involve in-group/out-group biases – e.g., the Holocaust and the Rwandan genocide – this effect of perspective-taking is particularly important for understanding the evolution of civilian protection norms. In this subsection, I examine the empathy–altruism hypothesis and its importance for IHL, and in the following subsection, I look at the bias-reducing effects of perspective-taking and empathy. Perspective-taking causes empathic concern through one of two causal pathways: first, by getting people to better understand the needs of others, and second, by getting people to weigh the needs or interests of others more heavily. One way that researchers induce empathic concern is by simply asking their subjects to take the perspective of others when they read through a hypothetical vignette. They can either ask them to engage in egocentric perspective-taking – “consider how you yourself would feel in this situation,” or they can ask them to engage in otherregarding perspective-taking – “please consider how X feels in this situation.” Interestingly enough, not only do different perspective-taking instructions lead to different behavioral effects, but they also implicate distinct areas of the brain.97 In one study, Batson and his colleagues had participants read a vignette about a university student, Janet, who was having trouble making friends and was feeling generally very depressed. The findings showed that merely asking participants to take Janet’s perspective, to think about how she feels, led to increased empathic concern and an increased desire to spend time with her. To control for the possibility that social desirability bias affected the results – i.e., that subjects did not want the researchers and their assistants to judge them for choosing not to spend time with Janet, Batson made sure that their responses were confidential. These findings show that empathic concern increases altruism irrespective of concerns about negative social evaluation.98 Batson has also shown that inducing empathic concern toward specific individuals can increase empathy for the groups of which those individuals are a part. For example, in one study he and his colleagues asked subjects to listen to a fictional interview with “Julie,” a woman with AIDS. In this interview, Julie “talked about her life since unexpectedly learning 3 months ago that she was HIV positive”:99 97 98 99

Batson, Early, and Salvarani (1997); Lamm, Batson, and Decety (2007). Fultz et al. (1986); Batson (2010). Batson, Polycarpou, Harmon-Jones, Imhoff, Mitchener, Bednar, Klein, and Highberger(1997, 108).

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Well, as you can imagine, it’s pretty terrifying. I mean, every time I cough or feel a bit run down, I wonder, is this it? Is this the beginning – you know – of the slide? Sometimes I feel pretty good, but in the back of my mind, it’s always there. Any day I could take a turn for the worse. (pause) And I know that – at least right now – there’s no escape. I know they’re trying to find a cure – and I know that we all die. But it all seems so unfair. So horrible. Like a nightmare. (pause) I mean, I feel like I was just starting to live, and now instead I’m dying. …It can really get you down.100

As expected, the results showed that subjects in the perspective-taking condition were significantly more likely to express empathic concern for AIDS victims in general.101 To see whether these findings are generalizable beyond sparking empathic concern for young women with AIDS, Batson ran the study using homeless people and murderers as the stigmatized group, and found similar results. A plausible extension of the empathy–altruism hypothesis is that empathic concern for war victims can increase moral condemnation of military tactics that kill civilians, and that perspective-taking and empathy should encourage people to push for stronger norms for protecting civilians in armed conflict – a conjecture that I analyze later in the historical cases in Parts II and III of this book. Although it is hard to discern the relative causal impact of empathic concern on the evolution of the laws of war, some research shows that there is a connection between wartime violence, empathic concern, and altruistic behavior. In a recent study, Alexandra Hartman and Benjamin Morse (2020) showed that experiences of wartime violence increase the tendency to empathize with others, and that this, in turn, can “motivate helping behavior across group boundaries.”102 They show that Liberians who experienced wartime violence during the Liberian civil war were more likely to host refugees from the 2010–2011 crisis in the neighboring Ivory Coast. Furthermore, they showed that “violence-affected individuals” hosted “a higher proportion of non-coethnic and Muslim refugees,” a result that points toward the bias-reducing effects of empathy.103 Other research has shown that empathy is strongly correlated with support for humanitarian policies designed to aid civilian war victims. In one study, Sabrina Pagano and Yuen Huo (2007) showed that individuals who felt “higher levels of empathy” toward the Iraqi people were more likely “to support political actions to improve” their well-being in the aftermath of

100 101 102

Batson, Polycarpou, Harmon-Jones, Imhoff, Mitchener, Bednar, Klein, and Highberger (1997, 108). Batson, Early, and Salvarani (1997a, 110); Pinker (2011, 586–587). 103 Hartman and Morse (2020, 731). Hartman and Morse (2020, 733).

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the 2003 Iraq invasion.104 Anecdotal evidence also suggests a strong connection between perspective-taking, empathy, and moral judgments about harming civilians. For example, the publication of photographic images of the effects of war on civilians in Vietnam (e.g., the photo of Kim Phuc running from a napalm strike in South Vietnam in 1972 and the photos of the My Lai massacre in 1968) indicates that photography had a significant influence on public criticism of US foreign policy in Vietnam.105 It is one thing to read about civilian suffering, yet quite another to see for oneself what US military operations mean for civilians on the ground. To show how empathic concern influenced the evolution of the laws of war, I look for three key pieces of evidence that – taken together – plausibly indicate that empathic concern shaped the development of civilian protection norms. First, I look for information suggesting that compassion influenced the authors of specific texts and influenced the framing of political arguments in diplomatic negotiations. Specifically, I look for words and phrases that have a strong emotional content – e.g., Vattel’s comment in The Law of Nations that “a man of exalted soul no longer feels any emotions but those of compassion towards a conquered enemy who has submitted to his arms.”106 Second, I look at how emotionally salient events such as major wars and social processes such as state formation and interdependence led people to place positive moral value on the lives and well-being of others. If the empathy–altruism hypothesis is correct, political events and processes that induce widespread empathy should encourage the development of stronger rules for protecting noncombatants. Third, although the focus of this book is on the development of civilian protection norms rather than their effectiveness in practice, in the historical cases in Parts II and III, I show that when people positively value the lives and well-being of others, and when they see them as relevantly similar to themselves, they are more inclined to observe restraints. However, when the conditions for empathy are absent, and in-group/out-group distinctions are heightened, people are less likely to observe restraints. Why do perspective-taking and empathic concern have these effects on altruism and moral judgments? One possible explanation for the connection between perspective-taking, altruism, and morality is that perspective-taking can almost literally cause people to feel how others feel. Indeed, research in cognitive neuroscience shows that some of the same areas of the brain that process pain are also operative when people

104

Pagano and Huo (2007, 245).

105

Neer (2013).

106

Vattel (2008, 553).

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witness pain in other people. Empathy does not just involve feeling and understanding the mental states of others, but it also involves feeling very similar experiences. In one study, researchers showed that the brain areas responsible for processing pain, namely, “the ‘pain matrix’—bilateral [anterior insula] AI, the rostral [anterior cingulate cortex] (ACC), brain stem, and cerebellum—were activated when subjects experienced pain themselves as well as when they saw a signal indicating that their loved one had experienced pain.”107 This is important for several reasons. First, while some commentators might view these results as confirming the idea that people only act altruistically to reduce their own discomfort, people nevertheless feel discomfort when seeing loved ones in pain. Second, they imply that, at the level of neurophysiology, there may be less of a difference than most people think between the pain that we experience and the pain that we see in other people. The Self and the Other may be closer than many people think. Finally, they help to explain, at the level of neurophysiology, why salient events like major wars, genocides, or humanitarian catastrophes can motivate many people to press for stronger norms for protecting others: because on some level they literally feel the pain of others. Perspective-Taking, Empathy, and In-Group/Out-Group Biases. Not only do perspective-taking and empathic concern lead people to be more altruistic, but they also reduce in-group/out-group biases. In one study, Margaret Shih and her colleagues showed that perspective-taking reduces explicit and implicit in-group biases. Shih had subjects watch a clip of The Joy Luck Club, a movie that depicts the struggles of an AsianAmerican character, June. To induce empathy, the participants were asked “to imagine how June feels about what is happening while they were watching the clip. In the control condition, participants were instructed to watch the clip as a newspaper reviewer.”108 After watching the video, participants were asked to finish a computer task to measure in-group biases. Specifically, they were asked to “evaluate good and bad adjectives after being subliminally exposed to in-group pronouns (e.g., ‘us’) or…out-group pronouns (e.g., ‘them’) before each word,” and “they measured how quickly participants were able to make the judgments.”109 Since in-group and out-group pronouns have diverging valences, subjects displayed in-group bias if they were faster at judging

107 108 109

Singer and Leiberg (2009, 976); Singer et al. (2004). Shih, Stotzer, and Gutierrez (2013, 81). Shih, Stotzer, and Gutierrez (2013, 81).

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good words after being subliminally exposed to in-group pronouns and faster at judging bad words after being exposed to out-group pronouns. Interestingly, Shih found that subjects in the empathy condition showed no in-group biases. There was no statistically significant difference between the reaction times when subjects judged the valence of adjectives upon being primed with in-group pronouns or out-group pronouns.110 In another study, research subjects were asked to evaluate a fictitious college application from a white American and an Asian American, both of whom were males. In the experiment, the subjects were asked to watch the brief excerpt of The Joy Luck Club, and those in the treatment condition were asked to put themselves in June’s shoes and to imagine how she feels. Subjects were then asked to evaluate two college applications – one from a white American student and one from an Asian student. More specifically, they were asked which of the two applications they were more likely to accept. While there were no statistically significant differences between the groups in their decision to admit the student (the applicants were academically very strong), subjects in the perspective-taking condition revealed a much stronger liking for the Asian applicant than did the subjects in the control condition.111 These findings are especially significant in light of the fact that some neuroscience research shows that people have a hard time empathizing with members of relevant out-groups, and in some cases, they actually take pleasure in witnessing out-group pain.112 This is particularly true for groups that are highly stigmatized.113 Shih’s work shows that perspective-taking can help mitigate in-group biases and out-group differentiation. Similarly, in the study I discussed earlier, Batson found that perspective-taking can generate empathic concern even for the members of stigmatized groups, e.g., AIDS victims, homeless people, and even criminals.114 These findings show that getting people to empathize with particular individuals can help to engender empathic concern for an entire group. As philosopher Peter Singer suggests, perspective-taking helps expand our circle of concern, in the process making our judgments more impartial between Self and Other.115 Furthermore, research by Marcus Holmes and Keren Yarhi-Milo shows that perspective-taking and

110 111 113 114 115

Shih, Stotzer, and Gutierrez (2013, 81). 112 Shih, Wang, Bucher, and Stotzer (2009). Cikara, Botvinick, and Fiske (2011). Harris and Fiske (2011). Batson, Polycarpou, Harmon-Jones, Imhoff, Mitchener, Bednar, Klein, and Highberger (1997). Singer (1981). For a similar argument, see Kohlberg (1981); Habermas (1990); and Linklater (2007).

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empathy can help states overcome longstanding tensions. Empirically, they show that empathy played a key role in helping the United States, Israel, and Egypt sign the 1978 Camp David Accords, especially through President Jimmy Carter’s ability to empathize with the Egyptian President Anwar Sadat and Israeli Prime Minister Menachem Begin. This suggests that even in cases where perspective-taking and empathy cannot reduce in-group/out-group differences, they can help overcome intergroup tensions and conflict.116 Against Empathy Skepticism. The scholarship reviewed earlier seems to indicate that empathy is one of the greatest forces for good in the modern world. However, in recent years some psychologists and philosophers have raised compelling arguments against the importance of empathy –a hodgepodge of ideas that I will refer to under the collective heading of “empathy skepticism.” In Against Empathy, Bloom raises several problems with empathy, most of which have to do with what he calls the spotlight nature of empathy. Empathy is particularistic in its gaze and parochial in its chief objects of concern. As a result, it leads people to act in ways that compromise important moral principles: Empathy is a spotlight focusing on certain people in the here and now. This makes us care more about them, but it leaves us insensitive to the long-term consequences of our acts and blind as well to the suffering of those we do not or cannot empathize with. Empathy is biased, pushing us in the direction of parochialism and racism. It is shortsighted, motivating actions that might make things better in the short term but lead to tragic results in the future. It is innumerate, favoring the one over the many.117

With the exception of Bloom’s claim that empathy pushes us “in the direction of parochialism and racism,” I largely accept most of what he says about the limits of empathy. If we define “empathy” as he does – i.e., that it is an affective capacity that enables people to feel what others feel118 – then, yes, there are some problems with empathy. Not only is it innumerate, but it can cause us to ignore things like fairness and impartiality. Nevertheless, I argue that as long as empathy is appropriately guided by our rational capacities, it can be a powerful instrument for motivating prosocial concern. Bloom lays out three key problems with empathy. First, he argues that in the moral domain, empathy is not only overrated, but that it often clashes with moral concerns like fairness and justice. In one study, 116 118

117 Holmes and Yarhi-Milo (2017). Bloom (2016, 9). Bloom (2016, 3–4, 16–17, 39–41, 70).

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Batson and his colleagues told subjects about Sheri Summers – a tenyear-old girl with “a fatal disease [who] was waiting in line for treatment that would relieve her pain. Subjects were told that they could move her to the front of the line. When simply asked what to do, they acknowledged that she had to wait because other more needy children were ahead of her. But if they were first asked to imagine what she felt, they tended to choose to move her up, putting her ahead of children who were presumably more deserving.”119 In this case, empathic concern for Sheri Summers led most people to unjustifiably choose her interests over the interests of others, thereby sacrificing rules of justice. Second, empathy is innumerate. It directs our attention to the here-and-now suffering of particular people. This is the identifiable victim effect, which Thomas Schelling aptly describes as follows: Let a six-year old girl with brown hair need thousands of dollars for an operation that will prolong her life until Christmas, and the post office will be swamped with nickels and dimes to save her. But let it be reported that without a sales tax the hospital facilities of Massachusetts will deteriorate and cause a barely perceptible increase in preventable deaths – not many will drop a tear or reach for their checkbooks.120

Bloom raises two problems with the identifiable victim effect. First, it “sets up a perverse situation in which the suffering of one can matter more than the suffering of a thousand.”121 Furthermore, he argues that it is psychologically impossible for us to empathize with large numbers of individuals. Imagine, for instance, trying to empathize with the many millions who have suffered as a result of the Syrian civil war. In Bloom’s view, this is simply beyond our cognitive and emotional capacities. Finally, Bloom argues that empathy is heavily biased. In his view, we tend to feel empathy for those who are closest to us (family members, friends, tribal affiliates, and so forth). Citing cases like the Sandy Hook massacre, Bloom notes that “we are fascinated by the plight of young children, particularly those who look like us and come from our community. In general, we care most about people who are similar to us – in attitude, in language, in appearance – and we will always care most of all about events that pertain to us and people we love.”122 In evolutionary terms, this makes a lot of sense: those who are psychologically constituted “to favor…friends and family over strangers” will survive to pass on their genes at a higher rate than those who are not.123 While he acknowledges 119 120 121

Bloom (2016, 25). Quoted in Bloom (2016, 89). For more on the identifiable victim effect, see Small, Loewenstein, and Slovic (2007). 122 123 Bloom (2016, 89). Bloom (2016, 91). Bloom (2016, 94).

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that in-group biases are technically “separate from empathy,” he contends that the “spotlight nature of empathy means that it is vulnerable to them.”124 Because empathy has a narrow, spotlight focus, it will always be focused on “what captures our attention,” including in-group biases.125 These are all excellent points. However, they overlook the fact that perspective-taking and empathy not only help to temper in-group biases, but, in addition, they tend to encourage people to become more concerned about larger categories of individuals. And although Bloom is right to say that the spotlight nature of empathy can encourage people to ignore pressing concerns like fairness, empathy is sufficiently malleable that it can be directed by emotional framing and reason. In short, as long as they are properly targeted, perspective-taking and empathy will foster prosocial concern. First, although Bloom is right to say that it is very difficult to empathize with a large number of individuals and that the spotlight nature of empathy can lead people to ignore things like fairness or justice, we can use the spotlight nature of empathy to make people more aware of broader moral concerns. Citing the work of Elaine Scarry, Bloom suggests that we are psychologically incapable of putting the interests of others on the same plane as those we love. To recognize the demands of fairness, Bloom suggests that we should depersonalize ourselves and those we love. For example, when deciding on who to hire or who to give an award, we should give equal weight to friends and strangers. But instead of putting strangers on the same moral plane as our friends and family, Bloom suggests that we find ways of reducing our personal biases – e.g., by using a blind review process where we do not know a job candidate’s age, sex, race, or appearance – all factors that can influence hiring practices. In short, we should look at ourselves and other people behind a “veil of ignorance,” to use Rawls’ terminology.126 Although I agree that justice and fairness sometimes require that we depersonalize ourselves and those we love, it all depends on the context. When in-group biases are so bad that they lead people to systematically violate the moral rights of others – e.g., during ethnic cleansing campaigns – justice requires that the victims be personalized through empathy. Moreover, even though empathy can sometimes encourage people to overlook considerations of fairness, the experiments that Bloom reviews all seem to show that, at the end of the day, empathy is incredibly malleable. For example, if we get people to empathize with Sheri Summers – the ten-year-old with the fatal disease – then people will empathize with her. However, if we induce

124

Bloom (2016, 95).

125

Bloom (2016, 95).

126

Rawls (1999a).

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people to empathize with the other children in line, then the results will likely go the other way. Also, by getting people to empathize with a particular individual, we can open their eyes to the moral interests of a broader category of individuals, as the research findings of Batson and Shih duly illustrate. Similarly, as historian Lynn Hunt has shown, and as I discuss in more detail later, getting people to empathize with particular individuals – even fictional individuals – has generated real consequences for the promotion of social justice. According to Hunt, the reading of epistolary novels helped bring about the idea of human rights in the West.127 Reading these novels helped Europeans empathize “across traditional social boundaries between nobles and commoners, masters and servants, men and women, perhaps even adults and children. As a consequence, they came to see others – people they did not know personally – as like them, as having the same kinds of inner emotions.”128 A similar process helped bring about the US Civil War and the destruction of slavery in the United States. Though the causes of the war were diverse, historians agree that Uncle Tom’s Cabin played an important role in illustrating the moral horrors of slavery. As Civil War historian James McPherson points out, although it is difficult “to measure precisely the political influence of Uncle Tom’s Cabin,” it sold over two million copies in ten years, thereby making it one of the most noteworthy best sellers “of all time in proportion to population.”129 One main objective of the book was to make the “whole nation feel what an accursed thing slavery is,”130 and it largely succeeded. Even contemporaries agreed. When Abraham Lincoln met with Harriet Beecher Stowe in1862, “he reportedly greeted her with the words: ‘So, you’re the little woman who wrote the book that made this great war.’”131 What made Stowe’s book such a success was the degree to which it helped people empathize with the plight of American slaves. Far from detracting from fairness or justice, empathic concern for the rights of slaves helped fuel the abolitionist movement in the United States. Second, and relatedly, although I agree with Bloom’s point that empathy can sometimes be parochial, it can sometimes reduce in-group biases, as the experiments by Shih reviewed earlier duly suggest. Perspective-taking and empathy do not get rid of in-group biases, but they can certainly help with reducing their most pernicious effects. 127 130 131

128 129 Hunt (2007). Hunt (2007, 40). McPherson (1988, 89). This quote comes from a letter from Harriet Beecher Stowe’s sister-in-law. See McPherson (1988, 89). McPherson (1988, 90).

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In short, we should use empathy to help deal with in-group biases. In response, empathy skeptics such as Bloom think that this is asking too much. In a discussion of the Israeli–Palestinian conflict, Bloom remarks that some would argue that the solution is more empathy. For Israelis, then, empathy not just for their neighbors sitting in the café, but for suicide bombers who set off the bomb that maimed them. For the Palestinians, empathy not just for their brothers and sisters who had their homes crushed by tanks but for the soldiers driving the tanks.132

In Bloom’s view, “this is a nice thought,” but this is just “not how empathy works.”133 It is simply unrealistic to ask Israelis and Palestinians “to feel as much empathy for an enemy as for their own child.”134 I have two responses to these points. First, when people call for Israelis and Palestinians to empathize with each other, they do not seem to be calling for them to empathize with extremists. Instead, they are calling for greater empathy between the two communities. Second, although empathic concern may have evolved to facilitate intra-group connections, particularly the connection between mothers and their offspring,135 this does not mean that natural proclivities like empathy are inflexible to behavioral control and rational redirection. For example, marketing experts routinely appeal to base human instincts to sell products, e.g., appealing to desires for sex, status, and dominance to sell everything from soda products to SUVs. Marketing behavior is well outside the evolved functioning of psychological traits and dispositions, but it clearly works in selling cars and driving up company profits. If marketing experts can manipulate evolved human psychology to sell products that are bad for our health (e.g., cigarettes), then there is no reason why we cannot redirect our natural proclivity to empathize with individuals within our own social groups to empathize with wider social networks of people on the outside. Indeed, the literature I reviewed earlier shows that empathy helps to reduce in-group biases and ingroup/out-group tensions. If this is true, then it means that as long as we can rationally redirect how empathy is used, we can make it apply to a wider network of individuals and groups outside our own immediate circles of concern. As I illustrate in more detail later, perspective-taking and empathic concern have helped to temper our naturally excessiveattachments to kith and kin, particularly when it comes to civilian

132 135

Bloom (2016, 190). Churchland (2011).

133

Bloom (2016, 190).

134

Bloom (2016, 190).

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protection norms, which, as I show in Parts II and III of this book, used to be far more parochial than they are at present.

The Universal Grammar of the Laws of War: Moral Intuitions about Intentional Harm The research reviewed earlier shows that perspective-taking and empathy influence patterns of moral thinking, and that they plausibly encourage people to morally condemn civilian victimization. In the chapters that follow, I show that if these capacities are engaged, they lead political agents to create stronger legal norms for protecting civilians in armed conflict. Consistent with the empathy–altruism hypothesis, I show that if the social environment encourages people to take the perspective of war victims, or if it encourages them to place a higher value on noncombatant lives, it will lead people to push for stronger legal institutions for protecting civilians and other victims of war. For example, in the aftermath of World War II, empathic concern for the victims of the Nazi regime – a regime that committed moral crimes that are said to have shocked the conscience of humanity – strongly influenced support for creating better protections for the civilian populations in occupied territories. Archival documents show that US support for such provisions was genuine, and it was not motivated by concerns for reciprocity or power politics. Similar considerations apply to earlier developments in the law and ethics of war. A close analysis of the language that Francisco de Vitoria used to express his displeasure with Spanish imperial policies in the New World – which involved killing and enslaving indigenous peoples – suggests a degree of empathic concern for the plight of Native Americans. By his own account, when Vitoria learned of the “bloody massacres…of innocent individuals pillaged of their possessions and dominions,” he concluded that there were reasons “for doubting the justice of what [had] been done.”136 It was knowledge of the “bloody massacres,” not a rational deduction from first principles, that led Vitoria to question the morality of Spanish policy in the Americas. For these reasons, I argue that perspective-taking and empathy can induce people to create restrictive norms for protecting civilians against intentional attacks. But in addition to perspective-taking and empathy, cognitive– emotional biases and heuristics strongly influence the content of the laws of war, particularly cognitive–emotional biases that focus on intentional harm. More specifically, moral reasoning is governed by subtle 136

Vitoria (1991, 238).

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Table 2.1. A grammar of intuitive moral rules on intentional and unintentional harms Rule

Description

R1

1. It is permissible to use violence in cases of individual or collective self-defense. 2. Do not harm individuals in a specific category C, where C is defined by culturally created membership rules.

R2

1. Intentional acts of violence have higher cognitive and emotional valence than unintentional acts of violence. 2. Intentional harms are morally worse than unintended harms.

R3

1. It is impermissible to intentionally inflict harm on “innocent” people. 2. “Innocent” people are those who do not exhibit an intent to violate moral or social norms, and they are not responsible for posing a threat to the lives of others.

R4

1. It is permissible to act in ways that risk incidentally harming other people. 2. In this case, two conditions must be met: (1) the action in question must be necessary to achieve an otherwise justifiable end; and (2) the potential benefit of the action must be sufficient to outweigh the harms imposed on others.

asymmetries in how people evaluate intentional actions: intended harms are routinely judged as worse than unintended harms, a cognitive– emotional bias that I refer to as the intention/side-effect distinction. Deliberately shooting one civilian is a war crime, but bombing a military target that incidentally kills hundreds of civilians might not be, depending on the military value of the target in question. This cognitive–emotional bias not only shapes how political and military decision-makers think about the law and ethics of warfare, but it shapes moral reasoning in virtually all spheres of social life, and there are strong reasons for thinking that the intention/side-effect distinction is substantially innate, by which I mean that it is programmed prior to experience.137 Although this intention/side-effect distinction does impose certain limitations on what states can do in armed conflicts, it constitutes the basis for the most significant permissive effects of IHL. Indeed, were it not for the fact that the law reflects a distinction between intended and unintended killing – or if there were more significant concerns for unintentional or accidental collateral damage – the accidental bombing of the MSF hospital in Kunduz might have been more widely criticized as a war crime. To streamline the discussion, Table 2.1 spells out the grammar of moral rules that people use to evaluate intentional harm – heuristics that I claim are not only substantially innate, but also affected the content of IHL. 137

Haidt and Joseph (2007).

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In this grammar of moral psychology, R1 serves to restrict the bounds of moral subjectivity. Moral principles only apply to individuals who are seen as full moral subjects, worthy of protection. It is a way of capturing the fact that moral cognition is sensitive to group distinctions. Not only do people happen to care more about those within their own sphere of concern, but they tend to think that such care is justifiable: treating friends as friends and enemies as enemies is usually considered to be a moral imperative. However, R1 has flexible parameters in that it can be applied to a narrower or wider group depending on the context. As I explained in the previous section, perspective-taking and empathy have been shown to reduce in-group biases. R1 also reflects concerns over collective self-defense, which is important because most cultures have norms that permit the use of violence for self-defense. Rules R2–R4 reflect general moral rules associated with intentional harm, battery, and the doctrine of double effect. The doctrine of double effect holds that when one action has two different effects – one “good” and one “bad” – we should evaluate the action by reference to a norm that permits the intended good effects, yet prohibits the intended bad effects. More specifically, the doctrine of double effect holds that it is impermissible to intentionally do something “bad,” e.g., to abuse children, to steal, or to kill innocent people. But the doctrine of double effect permits people to cause something bad just in case it is an unintended side-effect of an otherwise justifiable action, e.g., defending one’s home from a violent intruder, bombing an enemy target, or droning individual terrorists or terrorist cells. In situations like this, the moral benefits of the good effect must outweigh the moral costs of the bad effect. If the benefits outweigh the costs, the action is deemed permissible. These rules help to characterize the automated mechanisms that make up System1 thinking, specifically with respect to moral judgments regarding the infliction of harm. As I mentioned earlier, moral thinking encompasses a wide range of issues, including concerns related to purity/ impurity, justice and fairness, in-group/out-group relations, authority ranking, and physical and mental harm. Haidt argues that these five issues constitute the moral foundations of all ethical systems: they govern how people intuitively react to a range of external stimuli. For example, just as secular liberals react negatively to the infliction of harm on innocent people, so too religious conservatives react negatively to the desecration of sacred objects like churches, shrines, mosques, or synagogues. In other words, human moral systems focus on issues related to physical and mental harm, but they also focus on a wide range of issues that have little to do with harm. My emphasis on harm should not be taken to imply that these other issues are unimportant for morality, and

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indeed I suggest that these other concerns often play an important role in how people think about the ethics of harm. For example, as is reflected in R1, in-group/out-group thinking has a significant impact on how people think about the morality of killing: restraints on killing are ordinarily much higher for people who are within our sphere of concern. In addition, concerns for purity and impurity can amplify in-group/out-group dynamics. As I illustrate with a discussion of ISIS in Chapter 4, the ISIS killings of Yazidis and Shia Muslims were motivated by a toxic mixture of in-group/out-group dynamics amplified by a concern for in-group purity. Thus, the intuitive foundations of morality can interact with each other to produce variations on the same basic moral concerns. My reason for emphasizing the harm mechanism is that it is the one that carries the most significance for the law and ethics of warfare. Why should we believe that rules R1–R4 characterize the moral judgments that most people make with respect to deliberate harm, and why should we believe that they are substantially innate, or programmed prior to experience? There are three key reasons why. First, a wide range of studies show that rules like R1–R4 characterize the ethical judgments that many people make with respect to the use of violence, and some of these studies show that specific reaction patterns are rooted in specific neural networks in the brain. With respect to R1, decades of work on social identity theory shows that not only are people inclined to feel a stronger sense of obligation to those within their own sphere of concern, but they often base these Self–Other distinctions on seemingly minor group characteristics, and they often display strong in-group biases. For example, in a famous experiment, Henri Tajfel and Michael Billig found that research subjects establish social identities on the basis of seemingly minor traits, such as whether someone likes Kandinsky or Klee paintings.138 Social psychologists and IR scholars have used these findings to explain why nationalism, race, ethnicity, and patriotism influence patterns of conflict and violence in international relations.139 Research in neuroscience shows that Self–Other distinctions, as well as the likelihood of aggressing against the Other, are rooted in distinctive neural networks. In one study, Mina Cikara, Matthew Botvinick, and Susan Fiske examined how fans of rival baseball teams (the Red Sox and the Yankees) responded to the successes and failures of the other team. Interestingly, they found that reward-processing neural systems are correlated with self-reports of the “likelihood of harming the rival team’s fans.”140 For example, when Red Sox fans see the Yankees make a bad play, they feel a 138 140

139 Billig and Tajfel (1973). Brewer (1999); Gat (2013). Cikara, Botvinick, and Fiske (2011, 309).

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sense of pleasure. What is more, the region of the brain that codes for this pleasure – the ventral striatum – is also correlated with the desire to harm a fan of the rival team.141 These findings show that even at the neural level, Self–Other distinctions are key to understanding the propensity to inflict harm on others. With respect to the law and ethics of armed conflict, these findings are important because they show that moral cognition and emotion are sensitive to in-group/out-group distinctions. Even though perspectivetaking and empathy can moderate Self–Other distinctions, such distinctions are extremely important for understanding how people think and feel about the ethics of killing in war. In particular, they help explain why some societies and individuals betray a distinct lack of concern for the plight of foreign civilians. In the American Southwest, for example, the wars between white settlers and indigenous tribes were extraordinarily brutal, and both sides directly killed civilians.142 Likewise, Spanish conquistadors killed indigenous people in what is now Latin America on a mass scale, often justifying their behavior by claiming that the natives were “less than human.” Although some may argue that examples like these show that there really is no moral grammar, a more plausible interpretation is that these kinds of cases show that moral cognition is group-oriented. Psychological restraints on killing civilians are lower when there is a Self–Other distinction between political and military decision-makers, on the one hand, and civilians, on the other. Some IR scholars argue that decisions to target civilians are made primarily on the basis of cost–benefit calculations rather than considerations of race and social identity.143 But some cases show that states treat co-ethnics very differently from others. For example, during the American Civil War, the Union initially adopted a conciliatory policy toward Confederate civilians. When it became apparent that this policy would not work, they eventually abandoned it in favor of scorched earth tactics. Yet, as Civil War historian Mark Grimsley (1995) points out, Union forces generally spared civilian lives. However, the United States was not similarly restrained in its treatment of native tribes, whom it later killed off and dislocated in mass numbers. Racial differences are the most likely explanation for the variation in treatment. With respect to R2–R4, several studies have shown that most people place a higher valence on intentional as opposed to unintentional harms. Several studies have shown that judgments concerning the moral 141 142 143

Cikara, Botvinick, and Fiske (2011, 309). Gwynne (2010); Kinsella (2011); Janda (1995). Downes (2008). For a compelling response, see Fazal and Greene (2015).

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wrongness of an action are often correlated with judgments about the mental state of the agent who caused the harm, and in particular, people tend to focus on whether the agent intended to cause harm to the victim.144 However, there are some variations between children and adults. Though adults tend to evaluate actions by reference to mental states, children at or younger than five years of age tend to rely more heavily on information regarding the consequences of an action. At six to seven years of age, however, they begin relying more directly on information about intentions. The most plausible explanation for this developmental variation is that by six to seven years of age, small children start to develop a theory of mind – that is, they start to understand and explain the actions of others by reference to their mental states, e.g., desires, motivations, and intentions.145 In one study, the neuroscientists Liane Young and Rebecca Saxe showed that people vary in the degree to which they exculpate others for accidental harms, and more specifically they show that the propensity to exculpate is mediated by the right temporo parietal junction (RTPJ), a region of the brain recruited in belief attribution. Young and Saxe found that when subjects are asked to consider an accidental harm – e.g., putting poison in a colleague’s drink under the false belief that the poison was sugar – those who experience “higher activation” in “the RTPJ are more likely to exculpate” others for harming their colleagues.146 They are likely to exculpate because they believe that the agent is acting under a false belief that the poison is sugar. This finding shows that even in the case of accidental harms, assessments of mental states are critical for assigning blame and responsibility to moral agents. The intention/side-effect distinction, which lies at the core of R2–R4 as well as the laws of armed conflict, is grounded in emotional gut reactions to the thought of intentional harm. Cognitive neuroscientists and social psychologists have shown that people often place a higher moral valence on intended harms as opposed to unintended, side-effect harms. Even though the consequences of a specific action may be similar (i.e., someone is harmed), most people are inclined to believe that intentional harms are morally worse than incidental harms or accidents. The neuroscientist Joshua Greene has shown that this tendency is grounded in two distinctive processes of moral judgment. Using functional magnetic resonance imaging (fMRI) scans, Greene shows that when research participants are asked to evaluate harms that involve personal force – e.g., pushing 144 145 146

Cushman (2008); Baird and Astington (2004); Darley and Shultz (1990); Hauser et al. (2007); Mikhail (2007, 2011); Borg et al. (2006). Baird and Astington (2004); Young and Saxe (2009). Young and Saxe (2009, 2069).

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someone off a footbridge to stop a trolley from running over and killing five people – the emotional areas of the brain “light up,” and people tend to judge that it would be wrong to push the person off the bridge. However, when they are asked to evaluate actions that do not involve the use of personal force – e.g., pushing a switch that diverts the trolley from a path containing five innocent people onto a track that contains only one person – they are more likely to judge the action as morally right. Greene has shown that in this kind of case, the more rational areas of the brain associated with higher-order cognition are active, and consequently, most people are inclined to make the utilitarian judgment that it is morally right to flip the switch.147 In other words, the emotional framing of an action has a strong effect on the degree to which people judge that it is the right thing to do. As Jon Mercer aptly suggests “justice is an emotional belief.”148 Rules R2–R4 bear a direct relationship to the principles of distinction and proportionality in IHL, and the social psychological and neuroscience evidence reviewed earlier helps explain the content of the laws of war. This evidence suggests that people routinely judge intended killings as being worse than unintended killings. Thus, a plausible explanation for why the laws of war distinguish between intended and unintended killings is that when states created these laws they drew on these implicit cognitiveemotional biases. Indeed, later in this chapter I theorize that in diplomatic negotiations, states utilize these affective responses to facilitate what Todd Hall and Andrew Ross call the horizontal transmission of emotions, thus ensuring that individual-level emotions take on a collective dimension.149 When emotional responses lead to the development of legal norms, they become institutionalized.150 In addition, findings from cognitive neuroscience and psychology help explain how people justify or judge military tactics that lead to civilian casualties. For example, in the MSF case reviewed at the beginning of this chapter, the Pentagon’s justification for US behavior was clearly based on the fact that the aircrew that fired on the hospital operated under the mistaken belief that the hospital was, in fact, a military target. The findings of Young and Saxe show that there are particular neural networks that underlie such exculpatory judgments. Further, the intention/side-effect distinction helps to explain why states often justify military policies that expose civilians to harm by using what Bruce Cronin refers to as the “collateral damage exception to IHL,”151 i.e., that they did not intend civilian deaths.

147 149 151

148 Greene et al. (2001); Greene (2013). Mercer (2010, 6–7). 150 Hall and Ross (2015). Crawford (2014a); Holmes and Traven (2015). Cronin (2013, 175).

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The second reason why we should conclude that R1–R4 are substantially innate is that rules like them would have been functional for promoting survival in the ancestral environment. In other words, there are strong reasons to believe that they conferred an adaptive advantage on individuals who made judgments in accordance with such rules and behaved accordingly. The reasons for why rules like R1 would have provided adaptive advantages have been well articulated in the literature on the evolution of morality,152 so here we can be brief. R1 functions to promote in-group cohesion by enabling individuals to make moral distinctions between in-group and out-group members and by giving them reasons to act on behalf of kin and other conspecifics.153 Presuming it is true that in-group relationships conferred an adaptive advantage on individuals in the social environment, one way of reinforcing such relationships is through moral judgments and obligations. People are more likely to act on behalf of in-group members if they think they have a moral obligation to do so and if they are likely to feel guilty about violating such obligations. Morality helps bind groups together, and it does this by helping people distinguish the ethical obligations that they have toward members of their own tribe from the ethical obligations that they have toward members of other, perhaps rival, tribes. Within the tribe, obligations of mutual respect prevail. However, between tribes, moral obligations are generally seen as far less dense. We owe more to our compatriots than we do to outsiders. Rules R2–R4 characterize the obligations that prevail among those who see each other as full moral subjects. Within in-group relations, R2–R4 provide people with the cognitive and emotive repertoire to resolve a range of coordination and cooperation problems. The ability to distinguish intentional from accidental harms helps people detect cheaters: intentional harms against innocent persons are a clear and reliable signal that someone cannot be trusted. For example, if the United States intentionally violates a treaty obligation, this signals to the international community that the United States cannot be trusted. Because moral judgments express categorical, objective, and action-orienting prescriptions, an individual who moralizes the intention/side-effect distinction would be more likely to take it upon herself to implement a costly punishment when it is violated. Furthermore, since intentional harms signal that one cannot be trusted and since it can lead others to reciprocate, moralizing the distinction between intended and 152 153

Haidt (2001, 2012); Joyce (2006); Tooby and Cosmides (2010); Bowles and Gintis (2011); Greene (2013); DeScioli and Kurzban (2009, 2013). Gat (2013); Lopez, McDermott, and Peterson (2011); Haidt (2012).

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unintended harms would have made it easier for people to form more beneficial social relationships by encouraging them to implicitly monitor their own behavior. Indeed, Greene suggests that people likely evolved an action-monitoring system that prevents them from “being casually violent.”154 Also, since moral intuitions often generate emotional responses, they make it easier for people to credibly commit to follow through on costly punishments. When people are angered by a social infraction, for example, they may lash out irrationally, and this will, as Schelling would argue,155 increase their credibility should they decide to make a punitive threat. In short, moral emotions and cognitive biases facilitate coalitional affiliations and help actors solve the kind of collective action problems that would have been prevalent in the ancestral environment. Finally, research on moral and social development indicates that cognitive–emotional biases are substantially programmed prior to experience. In one study, Amrisha Vaish, Malinda Carpenter, and Michael Tomasello showed that small children, i.e., eighteen- to twenty-fivemonth-olds, expressed concern and exhibited helping behavior when they witnessed others experiencing a negative event, and that this effect held even when the person in question expressed no signs of harm. Vaish et al. exposed their subjects to a harmful or a neutral event (the control condition). In both conditions, one of the experimenters showed the child a favored object (a necklace, a belt, a picture, or ball of clay), and then showed the child subject how much they valued the object. In the harm condition, another experimenter took the object, and said, “in a mildly aggressive tone ‘I’m going to take/tear/ break this now,’ and [did so] mildly aggressively for 15 [seconds].”156 In the neutral condition, the second experimenter said and did the same thing, only this time they acted less aggressively. Vaish et al. found that children in the harm condition were significantly more likely to show a sense of concern for the victimized experimenter. They were also more likely to try to help them. Vaish et al. argue that children do this through a process of affective perspectivetaking.157 These findings show that empathetic abilities stem from an ontogenetic process, not a general learning mechanism. Other studies show that the ability to evaluate intentions arises very early in the process of human development.158 In one study, five- to twelve-month-old research subjects were shown videos “depicting two

154 155 156 157 158

Greene (2013, 226). Schelling (1960); Bowles and Gintis (2011, 186–194); Greene (2013, 40). Vaish, Carpenter, and Tomasello (2009, 536). Vaish, Carpenter, and Tomasello (2009, 534). Hamlin, Wynn, and Bloom (2007); Hamlin (2013).

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objects (a square and a triangle), one engaging in helping behavior and one engaging in hindering behavior toward a third object (a ball) that attempted to climb a hill.”159 After being habituated to the helping behavior and hindering behavior in the first set of videos, the infants were subsequently shown two new test videos, one in which the ball approaches the helping object, and another in which the ball approaches the hindering object. The researchers found that the subjects looked longer at the test video in which the ball approached the helping object versus the test video in which it approached the hindering object. They concluded that the infant research subjects “preferred the test movie in which the ball approached the object that had previously helped it reach the top of the hill.”160 In another study that used material objects for the characters, infants were shown a similar scene in which a climbing character was either helped or hindered by another character, and they were subsequently given the option of reaching for the helper or the hinderer, along with a neutral object.161 When they were given the choice between selecting a helper versus a neutral character, the infants “systematically chose the helper,” and when given the choice between selecting a neutral character or a hindering character, they likewise chose the neutral character.162 Followup studies have shown that children also engage in acts of retribution against the antisocial characters.163 Though preliminary, studies like this indicate that small children have an innate capacity to attribute mental states such as goals, intentions, and desires to other people, and they also suggest that small children have a rudimentary ability to attribute positive and negative intentions to others, an ability that is critical for their social development. Kiley Hamlin, Karen Wynn, and Paul Bloom conjecture that “the presence of social evaluation so early in infancy suggests that assessing individuals by the nature of their interactions with others is central to processing the social world, both evolutionarily and developmentally,” and that, as a result, the “capacity for such evaluations can be seen as a biological adaptation.”164 Also, even though most of the trolley experiments reviewed earlier are conducted with adults, some of them have been conducted with children as young as four-years-old, and with very similar results.165

159 160 161 162 164

Kuhlmeier, Wynn, and Bloom (2003, 402). Kuhlmeier, Wynn, and Bloom (2003, 405). Hamlin, Wynn, and Bloom (2007); Wynn (2007, 344). 163 Hamlin, Wynn, and Bloom (2007, 558). Hamlin (2013). 165 Hamlin, Wynn, and Bloom (2007, 558). Pellizzoni, Siegal, and Surian (2010).

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Why should we believe that intuitive heuristics R1–R4 are preprogrammed, or innate, rather than learned? Simply put, it is hard to explain how people can possibly develop the moral abilities that they in fact develop by supposing that they simply use general learning mechanisms. The main argument for the idea that people have innate moral modules is that the environment to which they are exposed is impoverished: it does not contain the amount of information that people would need to have in order to make the judgments that they in fact make.166 For example, the fact that children have certain social capacities from a very early age indicates that it is unlikely that these capacities are internalized from the social environment, which does not necessarily contain all of the relevant distinctions. In addition, the work of social psychologists Elliot Turiel and Judith Smetana shows that small children know how to distinguish between basic social conventions and moral rules, and that they make this distinction without any outside input. Though social conventions are perceived as contingent and context-dependent, moral rules are perceived as universal and applicable beyond a specific social circumstance.167 For example, speaking out in class without first raising your hand violates a social convention, but stealing or homicide violates basic moral rules. When children are asked to judge behaviors such as “not saying grace before snack” or “not hanging one’s coat in the designated place,” they routinely judge them to be permissible when there are not explicit societal rules that prohibit them – which indicates that they are societal conventions.168 However, when kids are asked to evaluate behaviors such as hitting another child, they tend to say that such actions are seriously impermissible even “in the absence of a rule,” i.e., that they are moral transgressions.169 Cross-cultural research on Korean children shows that they make very similar distinctions between social conventions and moral principles. When Korean children are asked to explain why they feel a particular action is impermissible, they tend to talk about transgressions “in terms of” individual “welfare, obligation, and fairness,” suggesting that these abilities are cross-culturally prevalent.170 The fact that small children make these distinctions between social conventions and moral principles indicates that they believe there is a difference between the moral domain and the social domain. As a result, philosopher Richard Joyce argues that in the case of morality this “poverty of the stimulus” problem is especially stark: “The problem here isn’t just that the environment doesn’t offer enough data for a child to grasp the 166 168 170

167 Mikhail (2007, 2011); Joyce (2006). Turiel (1983, 37). 169 Smetana (1981, 1335–1336). Smetana (1981, 1335). Song, Smetana, and Kim (1987, 580–581).

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necessary distinction[s]; it’s that it is puzzling what there even could be in the environment – even a rich and varied environment – for a generalized learning mechanism to latch on to in order to develop the idea of a moral transgression.”171 Indeed, the fact that small children pass judgment on the intentions of agents is puzzling enough; the fact that they are able to draw fine distinctions between general social conventions that they learn from authority figures and moral transgressions indicates that there is a preprogrammed moral faculty that enables them to understand the difference between what is morally right and what is morally wrong.

Innate Biases, Individual Differences, and Cultural Variation: The Linguistic Analogy Poverty of the stimulus arguments like this draw quite explicitly on the work of the linguist Noam Chomsky, so a brief excursus on this approach to human cognition will help to clarify certain aspects of my argument. In particular, although I interpret the linguistic analogy as simply that – an analogy – the theory of human cognition upon which this analogy builds provides a useful template for explaining how it is possible for System 1 moral intuitions to be relatively universal even though there are important differences between individuals and across cultures. As Chomsky described it, the goal of generative linguistics is to explain how it is possible for people to gain an extraordinarily rich and complex knowledge of language in light of the finite range of experiences and information to which people are ordinarily exposed. In his view, the social environment does not provide people with the amount of information that they would need to have in order to converge on knowledge of a particular language. Since Plato raised a similar problem in the Meno, Chomsky referred to this as “Plato’s Problem.”172 To clarify Plato’s Problem, consider the following facts. Assuming some degree of normal functioning, most human beings who reach a certain age become competent users of a particular language, whether English, Spanish, Mandarin, or Arabic. This means that the neural architecture of the brain must be such that it enables human beings to learn languages, to engage in abstract thinking, and so on. In contrast to the blank slate view of the mind put forth by behaviorists, Chomsky argued that knowledge of language is partially innate.173 According to Chomsky, the only way to account for linguistic knowledge is to focus on the internal cognitive structures and mechanisms that 171

Joyce (2006, 137).

172

Chomsky (1986).

173

Chomsky (1959).

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underlie complex linguistic abilities – a view that Chomsky refers to as “mentalism.”174 Prior to the Chomskyan revolution in linguistics, languages were conceived as externalized objects, or collections of utterances and written statements out there in the public domain. In this view, the grammar of a specific language was viewed as a set of rules from which one could precisely deduce all of the available sentences or utterances in the language. The problem with this understanding of language is that it is inconsistent with linguistic creativity: individuals can enumerate an infinite number of statements that outstrip any rules that one can inductively derive from the available utterances of a public language. Since it is possible to construct an infinite number of sentences in any language, we cannot view language as an external, publicly available object. Instead, we have to regard it as a component of the mind/brain of individuals. That is, we should regard language as an “internal” object, or as “some element of the mind of the person who knows [a] language.”175 In this view, the linguistic knowledge of a mature individual consists of two key elements: an intuitive knowledge of universal grammar, and an experientially derived knowledge of the grammar of a particular language.176 Although there are significant differences between language and morality, this view of the mind provides a useful framework for understanding how moral intuitions might be innate. As the philosopher Jerry Fodor describes it, the Chomskyan view holds that individuals are “born knowing certain facts about universal constraints on possible human languages,” and in response to their experiences with the social and cultural environment, they are able to construct more mature linguistic grammars.177 In the case of morality, the notion that some moral intuitions are innate – or “organized in advance of experience”178 – helps explain how people come to develop a moral sense in the first place, and why certain intuitions emerge early in the process of human development and in uniform stages.179 Finally, this approach helps to make sense of how individual and cultural differences are consistent with the notion that certain cognitive structures are substantially innate, and thus broadly universal. There are clear cultural differences in language across societies, but if the Chomskyan view is right, these differences are underwritten by a shared knowledge of universal grammar. With respect to morality, people start out with an intuitive toolkit of moral principles, 174 176 177

175 See Chomsky (1965, 4) and Mikhail (2011, 19). Chomsky (1986, 22). Chomsky (1986, 24). For more on Chomskyan linguistics, see Chomsky (1965); Hornstein and Antony (2003); Lasnik (2005); Hornstein (2005). 178 179 Fodor (1983, 4). Haidt and Joseph (2007, 380). See Kohlberg (1981).

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and their cultural experiences help them develop a more specific moral system. There are some innate biases that encourage them to accept certain rules and to adopt certain ways of thinking, but their experiences set the parameters of the moral principles that they adopt. For example, perspective-taking and empathy help redefine the line between in-groups and out-groups in R1, and emotional experiences can encourage people to adopt a higher threshold for making the kind of proportional trade-offs called for in R4. Haidt likens the relationship between innate moral intuitions and social interaction to the setting of a sound equalizer on a stereo system. In his view, we all come equipped with some basic moral foundations (a concern for harm/care, justice/fairness, in-group pride, purity, and social hierarchy), which are akin to dials we can use to manipulate how our music sounds (volume, treble, bass, etc.). Our experiences help to set the values of our moral equalizers:180 while some people are particularly concerned about individual harm and justice, others are more concerned about ingroup pride and hierarchy. With respect to the ethics of war, cultural experiences and traditions influence who one perceives as worthy of protection, and they also shape what kinds of moral values people seek in war – e.g., whether they fight to enforce the commands of an omniscient deity, or whether they fight for more secular objectives like national selfdetermination. Furthermore, although most people distinguish intended from unintended killings, the extent to which individuals are concerned about killing the innocent and protecting people from harm likely varies with personal experiences. Indeed, as the study by Hartman and Morse (2020) cited earlier suggests, experiences with violence generally encourage people to be more compassionate toward individuals in similar circumstances. Also, experimental research by Eric Uhlmann, David Pizarro, David Tannenbaum, and Peter Ditto (2009) suggests that political ideology plays a strong role in whether people are willing to support operations that kill civilians. Specifically, their results show that conservatives are more likely than liberals “to condone the killing of innocent civilians in a military attack when those civilians [are] Iraqis killed by Americans rather than Americans killed by Iraqis,” a result that is not surprising in light of Haidt’s finding that conservatives tend to be more “groupish” than liberals.181 Rules R1–R4 should thus not be regarded as exceptionless moral universals, but rather as a set of innate biases.182 That said, one might wonder how useful this approach to human cognition is when it comes to explaining the evolution of the law and 180 182

Graham and Haidt (2012); Haidt (2012). Sripada (2008).

181

Uhlmann et al. (2009, 489).

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ethics of war. After all, if the moral mind is like a stereo system that can be set high and low by the social and cultural environment, then the social, cultural, and individual variables that push our moral dials up and down are the key causal factors we should focus on, not the innate structures of the mind. In other words, evolution may have provided human beings with an innate knowledge of basic moral concerns, but this innate knowledge is of little use for explaining the content of the laws and ethics of war in particular circumstances. Here, we need to bring in sociological mechanisms and culture-specific values. I could not agree more, and indeed in the following section, I sketch out in more detail how the innate mind intersects with sociological mechanisms and culture to generate convergence on similar norms of war. That said, the theory of moral cognition and emotion sketched out in this chapter provides a useful template for explaining why very similar moral principles and concerns repeatedly emerge across societies. Individual and cultural differences can be understood as manifesting different dial settings on the same underlying principles. That said, when the social environment primes people to feel compassionate toward the victims of war, there is a broad tendency for civilizations to converge on more humanitarian norms. The analogy with language breaks down when we consider the causal role of emotions. As I suggested earlier, emotions play a highly significant and independent causal role in shaping moral judgments. Research by Haidt and others has shown that when moral sentiments are primed, even unconsciously, this has a significant effect on how people evaluate the morality of a given action.183 Furthermore, the research by Greene that I reviewed earlier shows that the emotional centers of the brain play a key role in shaping moral judgments.184 Those who defend a strong interpretation of the linguistic analogy believe that cognitive appraisals, or “unconscious computations,” condition emotional reaction patterns.185 But in light of the fact that emotions play a clear role in shaping and amplifying moral judgments, I adopt a weaker version of the linguistic analogy according to which the rules set forth in Table 2.1 characterize the automated mechanisms that constitute System 1’s moral judgments. While some of our System 1 moral intuitions may be purely cognitive, others are highly emotional. In addition, emotional experiences help set the parameters of the moral rules that people use to think about everyday moral decision-making. As I mentioned earlier, perspective-taking and empathy can shape how people define in-group/ 183 185

184 Haidt (2001, 2012); Schnall et al. (2008). Greene et al. (2001); Greene (2013). Mikhail (2007, 2011); Huebner, Dwyer, and Hauser (2009).

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out-group distinctions. So too, feelings of guilt can encourage people to act more conscientiously in the future when they commit moral infractions. In short, while the linguistic analogy provides a useful way of thinking about how innate moral biases are consistent with individual differences and cultural diversity, there are some key differences between moral principles and linguistic principles. We can think of rules R1–R4 as like a moral grammar in the sense that they help to characterize the automated mechanisms that shape our moral judgments.

Reason and Emotion in the Making of Moral Judgments As I mentioned earlier, a traditional line of debate in moral philosophy, one that goes back at least as far as Plato’s Republic, has to do with the extent to which our moral judgments are guided by reason or by emotions. Whereas moral rationalists such as Plato and Kant believe that reason should govern the emotions, moral sentimentalists such as David Hume believe that reason is the slave of the passions. This debate has also influenced competing approaches to the study of moral cognition. Rationalists such as Lawrence Kohlberg (1981) believe that moral reasoning plays a decisive role in how individuals arrive at specific judgments and how they develop over time. Moral intuitionists such as Haidt (2012) turn this view on its head. Like Hume, moral intuitionists believe that reason is the slave of the passions. Instead of viewing human beings as intuitive scientists who are out on a search for moral truth, moral intuitionists view human beings as intuitive lawyers who are intent on using their reasoning skills to justify their preexisting intuitions – a view that is supported by experimental work on motivated reasoning.186 For example, in one study, the legal scholar Dan Kahan showed that not only do liberals and conservatives disagree about the empirical validity of climate science, but that liberals and conservatives with better reasoning skills are more inclined to be ideologically polarized. Specifically, he showed that liberals and conservatives who performed well on the Cognitive Reflection Test were more ideological in how they evaluate information.187 In the case of morality, Haidt argues that people typically feel a quick flash of emotions in response to a particular action – e.g., they feel “revulsion at the thought of incest” – and then, when they are asked to provide a “verbal justification” for their judgments, they search for

186 187

Jost and Amodio (2012); Kahan (2013); Haidt (2012). For an IR application, see Jeffery (2016). This test measures the ability to engage in System 2 reasoning (Kahan 2013, 410).

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reasons to justify their emotions in the same way that a lawyer searches for reasons to defend their clients.188 While I accept the view that intuitions and emotions inform the process of moral reasoning, I reject the claim that reason is their slave. There are two reasons why. First off, although evolution provided humans with an architecture of preprogrammed moral intuitions that helps them navigate the contours of everyday social life, people often confront situations for which their intuitions leave them ill-prepared. For example, consider the moral dilemmas that states sometimes face when deciding whether to impose economic sanctions on regimes that violate international law: imposing sanctions sends a strong signal that lawbreakers will be held accountable, but sanctions may also have a detrimental impact on the civilian population. In cases like this, our moral intuitions about intentional or unintentional harm provide, at best, a simplistic guide to moral action. People need to reason through the various considerations to help them figure out the right thing to do. System 1 intuitions inform our thinking, but when these intuitions conflict, System 2 steps in to help us make a decision. Haidt claims that moral reasoning is only freed from the passions when intuitions are weak or when “processing capacity is high,”189 but System 2 can also be freed from System 1 when System 1 intuitions are conflicting and roughly equal in strength. The strongest intuitions do usually win out, but System 2 still helps people think through the issues. Second, reasoned reflection – either subjective or intersubjective – can help recalibrate our intuitions, possibly through neuroplasticity,190 a neurological process that I describe in more detail in the following section. On the individual level, reasoning through a moral dilemma, or reflecting on a personal experience, can help people decide which of their moral intuitions to listen to, and it can also shape their moral outlook for the future. At the intersubjective level, the effects of reason are potentially even more pronounced. Moral positions that liberal Westerners now take for granted (e.g., that slavery is wrong) were once openly contested. If Crawford (2002) is correct, these intuitions evolved through a long-term process of political contestation and moral argument, a view that implies that collective reasoning can help people recalibrate their moral intuitions and develop institutional responses to fix their various drawbacks.191 Far from simply operating at loggerheads, reason and emotion often work together to shape individual and collective moral judgments. 188 191

189 190 Haidt (2001, 814). Haidt (2001, 819). Holmes and Traven (2015). Patterson, Rothstein, and Barbey (2012); Paxton and Greene (2010).

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Culture, Cognition, and the Evolution of the Laws of War: How Mind and Culture Intersect Taken together, there are strong reasons to believe that the moral brain is equipped with a set of computational systems that enable people to make fast, intuitive judgments when confronted with complex moral dilemmas, as well as a set of cognitive reasoning abilities that help them think through their options. We also have strong reasons to believe that these moral abilities and intuitive heuristics are substantially innate. However, recent research in cognitive neuroscience casts doubt on the idea that the brain is hardwired for specific functions, especially research on neuroplasticity. It is well known that the brains of small children are incredibly plastic, but more recent scholarship shows that neuroplasticity continues well into adulthood. In one study, Bogdan Draganski and his colleagues showed that research subjects who were asked to learn how to juggle showed increases in gray matter “in the mid-temporal area…and in the left posterior intraparietal sulcus,” an area of the brain “associated with the processing and storage of complex visual motion.”192 Other experiments have shown that people who learn how to play music at an early age develop a larger corpus callosum – the area of the brain associated with interhemispheric communication.193 In one experiment, Alvaro Pascual-Leone showed that having subjects merely think about learning a new task, such as playing the piano, led to increases in the size of the associated regions of the brain. Pascual-Leone concludes that the human “brain is highly plastic, and that plasticity represents evolution’s invention to enable the nervous system to escape the restrictions of its own genome.”194 In response to findings like this, constructivist IR scholars might argue that a culturecentered account of moral psychology is more consistent with neuroplasticity than the account that I have defended here.195 In this section, I briefly explain how neuroplasticity works, and why it does not falsify my account of moral cognition and emotion. In light of the fact that the empirical evidence is too rough to arrive at any definitive conclusions, my claims about neuroplasticity are necessarily speculative. With that in mind, I argue that the phenomenon of neuroplasticity actually helps tie together some of the loose ends of the argument put forth in the preceding section. In particular, it helps to explain how mind and culture might intersect. Historical contingencies such as major wars and broad sociological processes such as the rise of economic interdependence across societies affect our ethical thinking by engaging our 192 194

Draganski et al. (2004, 311). Pascual-Leone (2009, 150).

193 195

Muente, Altenmueller, and Jaenke(2002, 475). Crawford (2009).

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abilities for empathy, intuition, and higher-level moral reasoning. Since the human brain is plastic, this opens up the possibility that social interaction and cultural experiences intersect with our moral psychology by calibrating the parameters of our intuitional heuristics – “fixing” the dials of our moral equalizers. Neuroplasticity may be particularly important for explaining how empathy can lead people to expand their circle of concern: their experiences help alter their neural networks. This is why I say that there are innate biases rather than exceptionless universals. Next, I show how my emphasis on innate biases can help explain the durability of civilian protection rules once they emerge: the fact that these rules fit with strong affective biases explains why people are motivated to keep them in place and to strengthen them over time. Finally, I describe how emotional framing and logical arguments shape the restrictive and permissive effects of IHL in face-to-face diplomacy.

Is the Moral Brain Inflexible? Cultural Variation and the Cognitive Science of Neuroplasticity Neuroplasticity refers to the ability of the brain to rewire itself in response to experimental cues, environmental factors, cultural particularities, and so forth. At the level of neural networks, it is manifested in the synaptic connections that form in response to environmental triggers, but it is also manifested in the ability of the brain to generate new neurons later on in life (neurogenesis). In the early stages of development, the brain is wired through the overproduction of synaptic connections. Psychiatrist Jeffrey Schwartz points out that “the factor that provides the developing brain with the right connections is, ironically, an early profusion of wrong connections…. About half the neurons that form in the fetal brain die before the baby is born: 200 billion neurons…are reduced to the 100 billion of a newborn as neurons that fail to form functional synapses vanish.”196 As the child grows and develops, its brain continually rewires itself in response to learning, environmental cues, and cultural transmission processes like imitation or teaching. In one set of studies, Schwartz demonstrated that psychotherapy can cause marked changes in the orbital frontal cortex of patients with obsessive–compulsive disorder (OCD), the location of the brain where OCD is localized.197 Interestingly, he found that simply getting patients to recognize that their symptoms were the result of faulty brain wiring was sufficient to alter their brains.

196

Schwartz and Begley (2002, 117).

197

Schwartz and Begley (2002).

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Some philosophers and psychologists argue that findings on neural plasticity problematize the claim that there are innate cognitive structures and abilities. There are several reasons for this. First off, it is mathematically impossible for genetic programming to be solely responsible for the development of synaptic connections. Philosophers David Buller and Valerie Hardcastle claim that “the total number of genes in human DNA is currently estimated at around 80,000,” and “as much as 50% of these may be concerned with our brain,” and “yet we have literally trillions of synaptic connections in our head,” and “[t]here is no way even 40,000 genes could code for that exactly.”198 Moreover, they argue that genetic programming is not responsible for the development of “higher cognitive functions…for it appears that most of the genetic ‘specification’ for our brain concerns the more peripheral structures.”199 However, the argument that I have advanced in this chapter does not presume that neural networks and structures are inflexible or determined entirely by genetic programming. Some aspects of moral cognition and emotion seem to be innate – particularly in light of the evidence concerning moral development that I reviewed earlier. Empathic abilities, the group-oriented nature of morality, and the intention/side-effect distinction all seem to be based upon relatively hard-wired neurological structures. But other aspects of moral psychology are certainly the result of enculturation and neural plasticity. Notice, however, that my argument is consistent with neuroplasticity and neurogenesis. My claim is that the mind comes equipped with cognitive and emotional biases that lead people to endorse particular norms in particular circumstances, not that the mind deterministically produces these norms.200 Also, I presume that certain elements of moral cognition and emotion are thoroughly plastic: genetic programming does not determine who we empathize or identify with, and it leaves substantial room for the development of group-specific norms and cultural values (although human beings are strongly inclined to value life). As Aristotle once said, human beings are by nature social animals. But which society or which group we happen to identify with is a matter of experience. Finally, research on neuroplasticity shows that attention and volition are causally important for neuroplasticity, at least in the later stages of adulthood.201 This leaves room for the possibility that evolved moral intuitions interact with cultural learning in the following way: moral cognition and emotion are wired for a particular content (“do not intentionally kill members of group g”), but experiential learning shapes how 198 200

199 Buller and Hardcastle (2000, 314). Buller and Hardcastle (2000, 314). 201 Sripada (2008). Schwartz and Begley (2002).

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the brain applies this rule in practice. Similarly, experiential learning may affect the extent to which people believe intended harms are morally worse than accidental harms. It may even be possible to train people to believe that intentionally harming innocent people is a good thing. However, in light of the evidence I reviewed earlier, this would require going against the grain of System 1. Since even small children manifest basic ethical concerns, helping behavior, and so forth, overriding these inclinations is difficult. So although it is possible for neural networks to rewire themselves, the cognitive science of neuroplasticity does not falsify my argument. Indeed, my argument depends on perspective-taking, empathy, and System 2 reasoning to calibrate System 1 intuitions: when the social environment encourages people to feel empathy for others or to reason from an impartial position, it may affect changes in how the parameters of their intuitive heuristics are set. Of course, this means that our moral modules change and develop over time, but not in the radical way that blank slate theorists would expect. Encouraging people to treat outsiders as similar in kind to themselves does not require a wholesale revamping of their moral architecture, it simply requires an increase in the value that people attach to the lives and welfare of outsiders. It requires the Self to humanize the Other and to observe some basic rules of restraint for how he/she is treated.

Perspective-Taking, Empathy, and the Emergence of Civilian Protection Norms This implies that in order to understand how the civilian protection norms emerge, we need to understand how the circle of concern expands. In the historical case studies in Parts II and III of this book, I show that there is no one structural-systemic force, or “master variable,” to use Wendt’s terminology,202 that leads people to perceive the Other as similar in kind to the Self, but rather there is a complex set of them. Indeed, this is one reason why I claim that moral cognition is crucial for understanding the emergence of civilian protection rules and why structural-systemic theories of norm emergence are inadequate: material and cultural forces are indeterminate. That said, the literature reviewed earlier provides some clues as to the kinds of thick social processes that will increase the extent to which people identify with or value the lives of others. First, social processes that encourage people to engage in routine perspective-taking should increase empathetic concern. For example, in her book Inventing 202

Wendt (1999, 343).

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Human Rights, the historian Lynn Hunt shows how print media and epistolary novels helped facilitate the rise of human rights ideas in Western Europe by eliciting empathy. These novels helped readers feel the experiences of the characters in an entirely new way. According to Hunt, they “made the point that all people are fundamentally similar because of their inner feelings,” inner feelings that were accessible by the form in which the books were written.203 In Chapters 3 and 5, I argue that this helps explain the initial emergence of civilian protection norms in ancient China and the West. In ancient China, the Warring States regimes were increasingly staffed by commoners who had a better understanding of the plight of ordinary people. This forced the leadership to take the interests of commoners into consideration in the making of state policies. In the West, the Peace of God movement promulgated civilian protection norms through increased social contact and perspective-taking in face-to-face meetings between clergymen and local lords. Second, as the empathy–altruism hypothesis implies, empathetic experiences tend to induce people to take steps to improve the welfare of others. In Chapter 5, I show that emotional responses to the treatment of indigenous tribes in the Americas encouraged just war theorists such as Vitoria to extend moral recognition to the interests of native peoples. Similarly, in Chapters 6 and 7 I show how empathetic experiences and emotional framing helped motivate the creation and strengthening of contemporary IHL. In Chapter 6, I show how emotional framing helped influence the evolution of the concept of lawful military targets in IHL, and in Chapter 7 I describe how direct experiences with war victims led Henri Dunant to push for stronger positive norms for aiding wounded soldiers. In addition, I show that sympathetic reactions to World War II and the Holocaust encouraged states to agree to create stronger laws for safeguarding the civilian population against intentional killing. Third, although this book focuses on explaining norm convergence, it also provides insight into the psychological factors that cause civilian victimization. Although states and nonstate actors certainly kill civilians for strategic or tactical reasons, moral cognition also plays an important role. First, people vary in their empathic accuracy scores. Some people score very high on dispositional empathic concern scales, but others score much lower. Some people score appallingly low. Though it is unclear what impact these latter outliers have on international politics and war, anecdotal cases like Adolf Hitler, Joseph Stalin, and Pol Pot suggest that when extremely depraved people get into positions of

203

Hunt (2007, 39).

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political power, the consequences for innocent civilians can be especially dire. Second, I argue that explicit attempts to dehumanize people and to magnify in-group/out-group differences can motivate civilian victimization. Just as perspective-taking can encourage the Self to humanize the Other, so too mass outbursts of interethnic violence are often precipitated by conscious attempts to prevent people from considering the inner lives of others. As social neuroscientists, Lasana Harris and Susan Fiske show, disgust reactions toward deviant groups or persons facilitates dehumanized perception, or “a failure to spontaneously consider the mind of another person.”204 These reactions in turn may facilitate practices such as torture or genocide, practices that are “generally not reserved for human beings because perceiving a person implies” adhering to “a number of moral rules and norms.”205 These findings help explain the rhetoric that perpetrators of mass killings often use: they frequently try to compare their victims to nonhuman animals, thereby eliciting disgust reactions that inhibit the tendency for their followers to consider the mental states of their victims. Moral Psychology and the Durability of Civilian Protection Norms Because they are backed by powerful moral emotions and beliefs, civilian protection norms are likely to remain relatively durable once they emerge. This point is important because it suggests that regardless of the specific historical mechanisms through which these norms arise, moral beliefs and emotions are still important for explaining how they evolve because they render certain norms more stable. By this, I mean that they are persistent standards of behavior that people use to evaluate state practices,206 not that they are always effective at regulating behavior. Since norms can emerge for any number of reasons, my claim in this subsection is that affect-backed norms are more likely to survive through the process of cultural evolution than are affect-neutral norms. Here, I build on the epidemiological account of cultural transmission set forth by anthropologist Dan Sperber. The epidemiological account holds that human psychology plays an important role in the transmission of cultural ideas. In short, it holds that cultural items that fit with universal mental modules are more likely to emerge and stay salient with a specific population. The epidemiological account of norms is not intended to explain the origin of norms per se; rather it is intended to account for the survival of cultural ideas. Philosopher Shaun Nichols argues that since 204 206

Harris and Fiske (2011, 175). Crawford (2002, 86).

205

Harris and Fiske (2011, 180).

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“affective mechanisms are regarded as universal denizens of human psychology,” they play an important role in cultural transmission:207 Emotional items are typically accorded extra importance. Put crudely, we care more about information that is emotionally gripping for us. And it seems likely that information that we care more about will be more culturally viable.208

Civilian protection norms are backed up by two sets of emotions: (1) empathic concern; and (2) the emotional responses that underwrite the intention/side-effect distinction. Moreover, they are reinforced by a range of emotional reaction patterns, including disgust, revulsion, shame, and guilt. Individuals feel pangs of disgust and revulsion in response to mass atrocities such as the massacre at My Lai or the Rwandan genocide. These emotions are primarily directed at the actions of others: virtuous people feel disgusted or repulsed by such actions. Emotions of guilt or shame, on the other hand, are primarily directed at ourselves. We feel guilt when we fail to live up to our own normative standards. For example, soldiers who participated in mass killings may, later on, feel guilty about what they did. We feel shame when we fail to live up to the normative standards of our own moral community. In other words, shame is more akin to embarrassment,209 and as such, it can be recruited to strengthen or reinforce existing norms, as well as to crack down on deviant behavior.210 Here is one area where my view about the neurological foundations of moral beliefs and emotion intersects with constructivist scholarship on socialization and norm diffusion: neurologically based intuitions provide the material substrate for socialization processes such as “naming and shaming.” However, the theory set forth here provides a deeper explanation for why certain norms arise again and again: they fit reasonably well with evolved cognitive structures and powerful moral emotions. Of course, just because a norm or law is affect-backed does not necessarily mean that it will be stable across time. As Steven Pinker has shown,211 revenge norms are affect-backed, but modern societies have found ways of tempering some of the more pernicious effects of revenge. The desire for revenge is at the heart of reciprocity, but, taken too far, it can lead to costly cycles of retaliation and disproportionate reprisals. 207 209 210

211

208 Nichols (2002, 240). Nichols (2002, 240); Sperber (1996). See Prinz (2007, 76–79). Several IR scholars have examined the political and rhetorical significance of shame. See Finnemore and Sikkink (1998, 903); Keck and Sikkink (1998); Krebs and Jackson (2007); Petrova (2016); Adler-Nissen (2014); Price (1998). Pinker (2011, 529–547). I am indebted to one of the anonymous reviewers for raising this point.

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Liberal philosophers as far back as John Locke have understood this, and indeed Locke believed that this was one of the inconveniences of the state of nature that encourages people to create a civil government to protect their rights. In Pinker’s view, social institutions such as the rule of law help to calm “the impulse for revenge before it spirals into a destructive cycle.”212 While it may be difficult to completely expunge the desire for vengeance, cultural mores and social institutions can help to calibrate these impulses in various directions. In cultures of honor, the desire for revenge is revved up, and as a result, costly cycles of retaliation are more likely to arise in these cultures. However, in more liberal cultures, the desire for revenge is often calibrated toward what is minimally required for reciprocity. Here, the emotion is not expunged, just redirected. This suggests that affect-backed norms are subject to cultural calibration. Consequently, one might wonder how this squares with the naturalistic theory of moral cognition and emotions I offer here. I have three responses. First, not all emotions are created equally. The moral emotions that underwrite the civilian protection regime are not only psychologically powerful, but they also have a strong negative valence when people are in their grips. John Hibbing, Kevin Smith, and John Alford (2014) describe the “negativity bias” as a psychological phenomenon that leads most people “to respond more strongly, to be more attentive, and to give more weight to negative elements of their environment.”213 The negativity bias affects individual life choices – e.g., people expend more resources to avoid threats than they do to achieve positive gains – but it also affects politics. People who have negative reactions to political events should be more likely to endorse institutional norms that reduce their likelihood. The negative reactions that people have to mass killings and genocides are a case in point: they tend to encourage humanitarian activists to push for stronger norms of war. This helps explain why rules that forbid deliberate killing are likely to be durable once they emerge. Second, my argument does not preclude the idea that culture-specific norms and institutions can tailor our moral intuitions, nor does it preclude the idea that the sociopolitical environment can favor some of our intuitions and emotions over others. Certain events can amplify the harm settings of our moral equalizers, shaping how the parameters of our intuitive moral grammar are set. Other sorts of events can lead in the opposite direction. In his book On Killing, Lieutenant Colonel David Grossman explains how military training and conditioning can reduce

212

Pinker (2011, 541).

213

Hibbing, Smith, and Alford (2014, 303).

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our psychological restraints on killing. One key mechanism involves creating a sense of cultural distance between soldiers and their victims: “It is so much easier to kill someone if they look distinctly different from you. If your propaganda machine can convince your soldiers that their opponents are not really human but are ‘inferior forms of life,’ then their natural resistance to killing their own species will be reduced.”214 Similarly, Pinker points out that the desire for revenge comes with a “dimmer switch” that is “most easily modulated when the perpetrator falls within our natural circle of empathy.”215 This suggests that the social environment can shift our intuitive reaction patterns, and that it does so via empathy. Finally, affective reactions such as empathic concern motivate political activists, diplomats, and lawyers to institutionalize their cognitive– emotional biases into the content of international law, thereby reshaping the culture of international society in a way that will ultimately serve to reinforce the affective mechanisms that discourage civilian victimization. The process I am thinking of here is akin to niche construction in the animal kingdom where organisms shape their local environment in ways that favor the survival and propagation of their genes. Here, affective mechanisms, which are strongly connected to behavioral motivations, lead people to change the normative environment in a way that makes it more likely that the kinds of socialization processes that constructivists often emphasize work to cultivate moral beliefs that discourage civilian victimization. Through emotion-based persuasion and reasoned argumentation, activists, lawyers, and diplomats work to reconstruct the normative environment in ways that toggle the dimmer switch on our more violent, destructive tendencies and amplify the volume switch on our more empathic tendencies. As I mentioned at the outset of this chapter, the most durable norms are those that benefit from a combination of strategic, affective, cognitive, and cultural reinforcements. By motivating people to alter the legal landscape in ways that fit with basic moral intuitions, the affective mechanisms that I have examined in this chapter should lead to particularly durable international norms.

Moral Intuitions and Communicative Action: The Restrictive and Permissive Effects of International Humanitarian Law Rationalists argue that states create international laws to resolve cooperation problems. As I noted earlier, in the case of the laws of war they 214

Grossman (2009, 161).

215

Pinker (2011, 541).

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design laws that will enable them to better protect their own citizens and that will establish legal bright lines of acceptable and unacceptable behavior. By contrast, Habermasian constructivists claim that states design the law via the logic of arguments. Although I agree that states often rationally design international law, the empirical evidence shows that they do this by invoking System1 moral intuitions. In the empirical chapters in Parts II and III of this book, I show how empathic concern motivated human rights activists, diplomats, and lawyers to sincerely argue for developing stronger restrictions on the use of force against the civilian population. Moral intuitions affect the process of argumentation in two key ways. First, they affect the proposals that states make to advance their interests. Second, they affect the process of argumentative consensus. Regardless of its semantic content, framing a proposal in the right kind of way can often mean the difference between success and failure. If a proposal is framed to evoke a visceral, gut reaction, this will likely overwhelm the proposal’s semantic content and pave the way for a successful argument. Again, this does not mean that System 2 communicative reasoning is causally insignificant. System 2 reasoning enables diplomats and lawyers to identify logical gaps in existing conventions, and it also enables them to respond to technological innovations that render existing laws obsolete. Furthermore, it is System 2 reasoning that helps people see that the biases and distortions of System 1 are in fact biases and distortions. However, in my analysis of international conference diplomacy in Part III, I show that attempts to generate reasoned consensus almost always rely on the intuitional heuristics and emotional response patterns of System 1. As I have stressed throughout this chapter, and as I demonstrate empirically in the rest of the book, states and nonstate actors frequently utilize the intention/side-effect distinction to design the restrictive and permissive effects of IHL. Although states do sometimes use this distinction in a Machiavellian attempt to create permissive norms, they also seem to use it because they regard it as intuitively compelling. What is more, the frequent use of this precept in IHL proceedings indicates that even if a significant number of states use it out of a Machiavellian attempt to reduce the effect that IHL has on their operational strategies and tactics, the distinction is perceived as having some sort of intrinsic moral merit. Regardless of the motives for which states use it, this precept gave rise to the main restrictive and permissive effects of IHL. The principle of distinction prohibits states from intentionally targeting civilians or civilian objects (a restrictive effect). However, IHL allows states to expose civilians to incidental risks just in case they adhere to the principle of proportionality (a permissive effect).

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While the bulk of this book focuses on how the principles of distinction and proportionality emerged, in the conclusion of the book I discuss two key problems with these legal principles. First, they enable plausible deniability.216 Since intentions are not public, states and nonstate actors can directly target civilians or civilian locations, but deny that any civilian casualties that resulted from their tactics were intended. Second, the rule of proportionality, in particular, gives military decision-makers wide room for maneuver. Technically, states can justify killing almost any number of people as long as the expected gains are deemed sufficiently weighty to override the anticipated losses. And although in bello proportionality takes the consequences of strategies and tactics into account, like the principle of distinction, it focuses on the intentions of decisionmakers. As Janina Dill notes, Rather than giving us a standard to evaluate outcomes, the principle of proportionality merely adds a requirement to what it means to have the right state of mind in war: right intent in war not only means fixing one’s thoughts on a military objective (distinction). The right state of mind includes the desire to “balance” the pursuit of military progress against the imperative of protecting civilians (proportionality).217

Although some tactics are clearly disproportionate – e.g., carpetbombing an entire neighborhood to take out a sniper – there is a large and highly subjective gray area. In the conclusion, I argue that even if it sometimes makes sense to distinguish between intended and unintended killings when it comes to assessing culpability for a war crime, IHL currently allows far too much decision-making discretion with respect to unintended side-effect killings and the indirect effects of armed conflict, and that as a result, it conflicts with basic principles of equal consideration. In light of the argument I have made in this chapter, it is unrealistic to presume that the intention/side-effect distinction will be expunged from IHL. However, I argue that we have strong moral reasons to increase the weight of concern that our legal institutions place on the unintended and indirect effects of armed conflict. Considerations on Method This theory of moral cognition, emotions, and argumentation generates several hypotheses that I examine in the following chapters. First, I argue 216

217

The concept of plausible deniability is most often used in reference to covert operations, but here I use it to describe the concern that military personnel may intend to kill civilians in certain situations, yet deny that they meant to do so. Dill (2015, 87).

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that moral intuitions influence the creation of the norms of war in human societies. To evaluate this claim, in Part II of this book, I use discourse analytic methods to show that there is a shared grammar of moral discourse and that this grammar causally influences the development of humanitarian protection norms. Depending on the quality of the historical data, in each case, I trace the creation and evolution of the norms of warfare. However, since the empirical record is often incomplete, and thus it can be very difficult to know for sure why a particular norm arose in the first place, I also look at why particular norms survive the process of cultural evolution. Here, I argue that the affect-backed nature of civilian protection norms contributes to their cultural durability, which is the second hypothesis that I examine in this book. Thus, even if it is not possible to isolate the contingent historical events and mechanisms that facilitated the emergence of civilian immunity norms in a given culture, my theory is still subject to empirical verification. Third, I argue that in face-to-face negotiations, states and nonstate actors invoke emotionally resonant principles to try to institutionalize restrictive and permissive principles into the structure of the laws of war. Since part of my goal is to tap into shared meanings, I conduct a discourse analysis of the major philosophical, legal, and military treaties in four culturally distinctive international societies: Warring States China, the early Islamic empire, medieval Europe, and modern international society. As cultural psychologists Richard Shweder and Nancy Much point out, one of the main objectives of discourse analysis is to develop a coherent account of what individual utterances and texts mean: “since speakers always mean and convey more than they say, meaning is revealed by making explicit the relationship between the said and the unsaid.”218 My hypothesis is that some of the implicit rules and meanings that underlie everyday moral discourse are broadly universal and that they are grounded in basic moral intuitions. Thus, my objective in using discourse analytical methodologies to uncover shared meanings is not simply to develop a coherent interpretation of culturally specific meanings, but rather it is to evaluate the conjecture that some moral ideas are broadly shared across cultures and that they influence the creation of humanitarian protection norms. One potential limitation of this research strategy is that it involves using textual information to derive conclusions about unobservables – i.e., the mental states that motivate moral judgments. There are two key problems here, one of access and one of sincerity. The problem of access

218

Shweder and Much (1991, 186).

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has to do with the fact that mental states are inherently subjective, and as a result, they are only accessible from a first-person perspective. Political scientists can only access them indirectly, through written documents, speeches, and overt behaviors.219 When it comes to interpreting the psychological states that motivated ancient Chinese theorists, early Islamic jurists, and medieval Christian theologians, the problem of access is even more acute. Indeed, since these cases are far back in history, it is very difficult to know for sure exactly what mental states motivated people to make specific judgments. As such, there is no easy way to know for certain whether the emotional intuitions reviewed in this chapter causally influenced the norms of war in these early cultures. When it comes to face-to-face negotiations, the problem of access is still a challenge, but here the key problem is that of sincerity. In face-to-face settings, people are usually positioning for a specific audience (or two or three). As the sociologist Erving Goffman might put it, they are trying to manage an impression.220 This means that what people say may not necessarily reflect what they mean, nor even what they really believe. The problems of access and sincerity bedevil all historically oriented scholarship. Not only do political and military historians routinely try to understand the reasons for why historical figures such as Roosevelt, Churchill, or Stalin acted as they did in particular circumstances, but so too historians of philosophy frequently disagree over how to interpret the arguments of Plato, Aristotle, and Kant. These problems are not unique to the approach I use in this book. However, while some IR scholars think that the problems of access and sincerity are so difficult to get around that we should abandon the effort and focus solely on overt behavior and publicly available rhetoric,221 here I operate under the presumption that social scientists should make an effort to theorize about the mental states that drive political action. In what follows, I address the problems of access and sincerity in three ways. First, in each case, I look for evidence that either confirms or disconfirms my interpretations. For example, in my analysis of Warring States China I look for evidence showing that the rules of war were shaped by moral considerations, but I also look for evidence that suggests that they were driven by power politics considerations. In addition, in each chapter I examine the kind of language that philosophers, lawyers, and diplomats used to express their arguments, and I focus specifically on whether it is plausible that emotion-based moral intuitions may have influenced their reasoning. For example, in my examination of Western just war doctrine, 219 220

O’Mahoney (2015) refers to this as the “fundamental problem of reason attribution.” 221 Goffman (1959). Krebs and Jackson (2007).

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theorists such as Vitoria and Vattel frequently use emotion-laden terms to make their arguments. In addition, Vitoria directly explains how moral considerations stemming from empathy led him to expand the scope of the law to apply to Native Americans. Where necessary, I also use secondary sources to back up my interpretations. Given the difficulty of interpreting old and ancient texts, this methodology is imperfect. Therefore, my interpretations should be read as plausible conjectures that attempt to make the most sense of available textual and historical evidence. In light of the plausible assumption that emotions affect word choice and persuasion, this methodology helps to provide indirect evidence for the claim that moral beliefs and emotions shape the development of the norms of warfare. Second, to address the problem of sincerity in face-to-face settings where the likelihood of deception is high, I follow a principle of consilience.222 This involves looking at multiple sources of evidence (including diplomatic cables, memos, letters, speeches, diary entries, and secret archives) to evaluate competing theoretical explanations. I focus specifically on comparing what people say in public versus what they say behind closed doors. For example, to show that even powerful states care about creating norms that safeguard civilians from deliberate attacks, I examine secret memos and reports on the development of the Geneva Conventions of 1949 and their Additional Protocols. Even though backstage discussions still take place before an audience, secrecy reduces the political incentives to deceive. At the very least, it provides a more holistic understanding of state intentions. Although the principle of consilience cannot provide us with certainty as to actual state intentions, it can help reduce uncertainty. To measure the influence of moral emotions on institutional design, I examine how differences in the emotive salience of legal arguments impacted persuasive success. For example, in Chapter 6 I show that differences in the emotive framing of legal arguments played a key role in the persuasive success, or lack thereof, of proposals to prohibit the use of asphyxiating gas, the dropping of projectiles from balloons, and immunity for merchant vessels on the high seas. Third, I show that the historical evolution of civilian protection norms in each of these cases closely matches the theoretical expectations set forth in this chapter. In the cases of ancient China and the West, I show that historical events and sociological processes that required political actors to take the interests and well-being of noncombatants into account

222

O’Mahoney (2015); Holmes (2018).

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led them to develop similar jus in bello principles. Since civilian protection rules in early Islam were a byproduct of earlier cultural norms, in this case I examine why these norms might have survived the transition from pre-Islamic Arabia to Islamic Arabia. One problem with this approach is that there are several factors that could affect whether a culture develops civilian protection ideas. Political theorists or state officials could adopt civilian protection ideas because they believe that this is the most efficient way of conquering and subsequently pacifying enemy territory – a winning of hearts and minds logic – or they could adopt them out of a concern for safeguarding their own civilians – a reciprocal enforcement logic. In each of the case studies, I argue that these two logics would lead to significantly different civilian protection rules than the moral psychology logic I have laid out in this chapter. In the ancient China case, I argue that the winning of hearts and minds logic doesn’t explain why Warring States theorists frequently viewed state administration and warfare in moral terms in the first place. After all, some Warring States theorists (i.e., the Legalists) adopted the realpolitik view that the goal of statecraft is to ensure order, not to extend universal love to the people, as Mozi argued. The fact that this option was available suggests that moral concerns such as compassion did influence those who advocated more restrictive limits on how the people should be treated. I make a similar argument with respect to the West, although in this case, I add that empathic concern arising out of face-to-face interactions also shaped the early evolution of civilian protection norms. In the case of early Islam, I argue that the reciprocal enforcement logic does not explain why Muslims endorsed civilian protection norms even when they had little to fear from reprisals. Finally, in modern IHL, I argue that the reciprocal enforcement logic does not explain why reprisal attacks on civilians are regarded as war crimes. To supplement this methodological approach, I also explore whether the theory can account for divergent or “hard” cases. There are at least four kinds of divergent cases: (1) cases where a state or nonstate actor knowingly violates a norm; (2) cases where a state or nonstate actor apparently violates a norm, but denies that their actions amount to a moral or legal infraction; (3) cases where a state or nonstate actor exploits a permissive loophole in the norm; and (4) cases where there are real cultural differences in the underlying norms. Cases of Types (1)–(3) are fully compatible with my argument. With respect to Type (1) cases, my theory does not presume full compliance. Indeed, because political actors often have strategic or power-political motivations to kill civilians, we need laws and institutions to hold them accountable. Cases of Types (2) and (3) are also consistent with my argument. These kinds of cases

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usually involve an attempt to engage in norm evasion. As Zoltán Búzás defines it, norm evasion involves compliance with the letter of the law, but not its purpose.223 Most of the divergent cases in the cultures under consideration in Parts II and III are cases of Types (1), (2), or (3). For example, in Chapter 6 I argue that although many strategic bombing operations clearly violated the principle of distinction, the United States and Great Britain attempted to justify their actions as consistent with the laws of war, arguably rendering them Type(2) or Type (3) cases. Type (4) cases are more complicated. As noted earlier, I do not think there are exceptionless cultural universals, and so there are likely to be exceptions to the claims I make in this book. That said, the theory set forth here does provide a useful starting point for explaining why specific cases are exceptional. For example, in Chapter 4 I examine how the theory can deal with the motivations of Islamist extremist groups like al-Qaeda and ISIS. In particular, I argue that social identity-based factors often play a critical role in radicalization. Furthermore, the political rhetoric of ISIS clearly represents a genocidal ideology that is rooted in in-group/out-group differences and a strong desire for political and cultural purity. ISIS is an exceptional case, but not one that undermines the theory, even though it may underscore the theory’s outer limits. Furthermore, my theory is about cognitive–emotional biases, and, indirectly, sociohistorical tendencies. It does not take a “snapshot” view of history, but rather it focuses on a broad tendency for societies to converge on humanitarian norms. Exceptional cases like the Nazis or ISIS may simply be a diversion from a broader historical trend. Hence, the proper way to evaluate the theory is to look at the process whereby humanitarian norms develop, which is roughly the approach that I take in the empirical chapters of Parts II and III. Why choose these particular cultures? An ideal research strategy would be to analyze the norms of war in every culture across human history. But since this is clearly impossible, the next best option is to examine a set of cultures that are broadly distributed in time, space, religion, and so on. The cases that I review in Part II were chosen to maximize cultural variation and to ensure sufficient geographical breadth: Warring States China, Islam, the early West, and modern IHL cover a large crosssection of human cultures, and they are well distributed geographically. Furthermore, they all have a written history, which makes it possible to examine the evolution of the rules of war over time. One problem with this is that it introduces a possible selection bias. Cultures that have a

223

Buzas (2017, 862).

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written record are likely to be very different from those that do not, particularly on dimensions that are relevant for explaining the development of the norms of war. For example, written cultures are probably more likely to have entrenched norms for ensuring cooperation. This is because cooperation is necessary for sustaining the kind of economic developments that enable societies to have written cultures to begin with. As a result, it is possible that legal norms for ensuring the protection of innocent people may be related to these other factors rather than to psychological propensities. Additional research on non-written cultures is certainly needed to address this problem in full. However, in the case studies in Part II, I address this problem by examining how ecological factors interacted with psychological biases to generate support for particular norms of war. This gets around the problem by accepting that ecological factors play an important role in the evolution of cultural ideas. However, ecological factors (e.g., those that separate written cultures from non-written cultures) are inert. They influence the design and evolution of social norms by altering incentive structures, encouraging people to cooperate, and fostering empathy. For example, societies that are connected by trade and commerce have an incentive to develop cooperative institutions for facilitating trade. This requires them to engage in routine perspective-taking, which can in turn promote empathic concern, a reduction in in-group biases, and so forth.224 Ecological factors shape cultural norms by engaging our emotional capacities, cognitive predispositions, and individual reasoning abilities. One additional puzzle is that it is very difficult to tease apart the causal arrows that connect moral intuitions with the norms of armed conflict. As constructivist work on socialization suggests, as the norms of war become more robust and institutionalized, our moral sentiments become more and more attuned to protecting innocent people in armed conflict situations. This means that rather than our moral intuitions affecting the development of the laws of war, the laws of war may be affecting our moral intuitions. Modern human beings may be more concerned about civilian immunity norms because they have internalized the laws of armed conflict. Though I agree that moral intuitions and IHL are “co-constituted,”225 in the following chapters I address this issue by looking for empirical evidence that clarifies the temporal order of the chain of events that led to the evolution of the laws of war. For example, if the evidence shows that moral beliefs and emotional reactions arose before the development of the laws of war, then we have good evidence to

224

Pinker (2011, 76–77).

225

Wendt (1999).

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conclude that moral intuitions influenced the creation of civilian protection norms, not the other way around. Of course, if the law is working properly, states and their officials should eventually internalize them so that compliance becomes taken-for-granted. Once norms have become taken-for-granted, violating them should not only be seen as unlawful, but in addition, it should lead to significant moral condemnation. But even though there are strong interconnections between the positive laws of war, on the one hand, and our moral response patterns, on the other, in the chapters that follow I argue that, in terms of their origins, the laws of war are rooted in shared moral intuitions. In Part II, I show how the theory outlined in this chapter helps explain why civilizations that are otherwise very different nevertheless converged on very similar norms for protecting civilians. In Part III, I show how it can help account for the restrictive and permissive effects of IHL.

Part II

The Universal Grammar of the Laws of War China, Islam, and the West

3

Taming the Sovereign State Formation and the Ethics of War in Ancient China

From premodern tribes to highly advanced civilizations, all societies have elaborate rituals and normative codes concerning the use of violence. In pre-Columbian North America, for instance, Native American tribes used armed violence as a way “to restore … balance” to their communities after the loss of a tribal member.1 The practice of taking enemy scalps was part of an intricate mourning ritual that was believed to bring the tribe back to equilibrium. In some tribes, warriors used to drink the blood of their “slain enemies” in battle, a practice that European observers viewed as particularly “deviant.”2 In ancient China, many people believed that there is an intricate connection between the natural order and the social order, and, as a result, rulers were obliged to affirm this connection by imitating the natural change of the seasons – for example, by following the calendric cycle in restricting war to the killing and dying seasons of the year, specifically autumn and winter. In the Lushi Chunqiu, an official text compiled by the prime minister of Qin in Warring States China, it was said that in the first month of summer, “things should be encouraged to continue to grow taller and to mature. Do nothing that will cause spoilage or injury … do not send forth large bodies of troops.”3 And finally, some historians believe that the Vikings used to finish off their enemies by performing a grotesque ritual in which they traced an eagle into their backs with a sword.4 As these examples indicate, violence is a socially meaningful practice that is not dissimilar from religious ceremonies or funeral rites. It is heavily infused with cultural significance and symbolic power, and the meanings that people attribute to the violence of war varies considerably from culture to culture. In addition, the evidence apparently shows that premodern societies such as the Vikings, the Mongols, several Native American tribes, and imperial Europeans were exceedingly brutal, 1 4

2 3 Abler (1992, 7–9). Abler (1992, 9). Knoblock and Riegel (2000, 116). However, as Halsall (1992) explains, other historians believe that this ritual was a literary invention by saga-writers.

91

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especially in their treatment of civilians in enemy societies. In fourteenth century South Dakota, for instance, internecine warfare in the Missouri River valley led to a massacre in which 486 people were killed, many of whom were severely mutilated.5 And according to a provocative history of the rise and fall of the Comanche Indians, journalist S. C. Gwynne documents the violent raids in which Comanche warriors routinely took part. In these raids, it was an accepted practice to slaughter the men and kidnap the women and children.6 Their eventual overlords were not much better, if at all. Indeed, although the legal concept of “genocide” did not arise until after World War II and the Holocaust,7 the US government vigorously implemented a policy of what we would now refer to as ethnic cleansing against the Native Americans. In more recent years, mass killings of civilians have taken place in regions as diverse as Rwanda, Bosnia, the Sudan, Syria, and Myanmar. It is impossible to untangle the intricate threads that weave together cultural meanings and the practice of organized violence. However, across the expanse of time and space, moral and legal norms that aim to limit the violence of war have gradually taken shape. In the next several chapters, I examine the law and ethics of war in three highly advanced civilizations: Warring States China, early Islam, and the West. More specifically, I use primary textual sources and secondary literature to establish the claim that a very similar set of moral norms for protecting civilians arose in ancient China, early Islamic law, and the Western just war tradition. Primary evidence culled from ancient texts, philosophical treatises, and sacred scriptures show that despite their vast differences, political actors in these diverse civilizations used very similar moral principles to justify the idea that certain categories of people should not be killed in war. In each case, I begin by providing a brief overview of the political and economic factors that helped spur the development of moral, social, and legal norms for protecting innocent civilians in war. Taken together, I argue that a complete explanation for how these diverse civilizations converged on similar civilian protection norms must incorporate the theory of moral cognition set forth in Part I. In the case of ancient China, I show that a plausible interpretation of the evidence suggests that social developments associated with the rise of the sovereign state system encouraged a measure of empathy for the plight of ordinary people, and that these processes in turn shaped the evolution of a people-centric political philosophy that counseled restraint in war.

5

Zimmerman and Bradley (1993).

6

Gwynne (2010).

7

LeBlanc (1991).

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State Formation in Warring States China The Warring States period in ancient China (453 BC–221 BC) was a time of immense social, political, and economic change. In the span of about two centuries, an anarchic system comprised of seven great powers and an array of weaker states was subdued by a rising imperial state named Qin that was located in the westernmost reaches of the Chinese realm. Through a variety of internal political reforms and military strategies – many of them quite brutal – the leaders of Qin were able to unify the Chinese political system into a vast empire that would eventually outlast the hegemony of the Qin dynasty. In this section, I show that two structural-systemic factors influenced the moral ideology of war in the Warring States period in ways that increased support for granting protections to unarmed people, many of whom were peasants: (1) economic and political interdependence between the interests of state officials in the Chinese realm; and (2) the dispersion of social power brought on by the process of state formation. These factors not only led to the development of what is generally referred to as a “people-centric” political ideology in ancient China,8 but in addition they led political theorists and state officials to regard warfare as a legal instrument for upholding the integrity of the social order – a factor that produced support for ideas that aim to protect innocent people. But although these social conditions made it more likely that political agents would extend protection to unarmed people in warfare, they did not determine the emergence of humanitarian ideas in the strict sense of the term. Without bringing in psychological factors such as empathy and collective identity, it is not clear why interdependence would encourage elites to grant protections to unarmed peasants. In fact, since peasants had very little political power, interdependence between elites and average citizens could have led to more oppression, and in some cases it did. The state of Qin, for instance, was relatively brutal in how it treated its subjects. Also, even though state formation does seem to have increased the power of ordinary people to some extent, the “early Chinese states were far from democratic,”9 which means that the people had little capacity to hold their superiors accountable. Hence, at some level, Warring States theorists must have believed that the people are entitled to ethical treatment in war. To defend these claims, in the following section I outline the historical background of the Warring States period in the Zhou feudal system and the Spring and Autumn

8

McNeal (2000).

9

McNeal (2000, 80).

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era. I explain how the process of state formation led to the development of a people-centric ideology and to a nascent concept of the rule of law. Finally, I discuss how Warring States theorists thought about the ethics of killing in war. The Emergence of the Warring States System The Warring States period was preceded by two historical periods: the Western Zhou era (1045 BC–770 BC) and the Spring and Autumn era (772 BC–452 BC). The Western Zhou system was a feudal aristocracy in which political status and power depended on familial ties. Ruling elites were related by bonds of kinship and lineage, and the dominant officials in the administrative structures of the state inherited power from their parents and ancestors. This hereditary structure of rule was largely preserved in the transition to the Spring and Autumn era, but was increasingly undermined during the transition to the Warring States system.10 As a feudal structure of rule, moral ideas about legitimate uses of violence in the Western Zhou and Spring and Autumn era were defined by what we would now call a “culture of honor.” Violence of all forms, whether political or sacrificial, was restricted to the warrior nobility, and as historian Mark Lewis observes, warfare was the “hallmark of the aristocracy.”11 It was the principal means of gaining prestige, wealth, and power. The social significance of war in the Spring and Autumn era is reflected in the fact that the proportion of skilled charioteers in Spring and Autumn armies vastly outnumbered the proportion of unskilled foot soldiers.12 To successfully command a chariot in war, an individual has to undergo a great deal of combat training, far more so than ordinary foot soldiers. Although the skills required to become a skilled charioteer were well within the ken of ordinary peasants, training vast numbers of people for chariot forces would have been prohibitively costly. Furthermore, the cultural values of the time led political leaders to devote more resources to employing charioteers. This aristocratic culture of honor was indeed so entrenched that it sometimes manifested itself on the field of battle, where soldiers of inferior status would remove their helmets to show respect for enemy superiors.13 The aristocratic culture of honor that prevailed during the Spring and Autumn era generated so much internecine strife that it eventually destroyed much of the Zhou aristocracy. As Mark Lewis observes, 10 11

See Hsu (1999) for more on the transition to the Spring and Autumn era. 12 13 Lewis (1990, 54). Hsu (1965, 66). Hsu (1965, 55).

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Table 3.1. Battle casualties in Warring States battles with Qina Year, BC

Number of casualties

Defeated state

364 354 317 312 307 300 293 280 274 273 260

60,000 7,000 80,000 80,000 60,000 30,000 240,000 20,000 40,000 150,000 450,000

Alliance of Han, Zhao, and Wei Wei Alliance of Han and Zhao Chu Han Chu Alliance of Han and Wei Zhao Wei Alliance of Zhao, Han, and Wei Zhao

a

Hsu (1965, 67).

“the pursuit of honor for the lineage and the individual noble led the Zhou aristocracy into a deepening spiral of civil war and mutual annihilation that ended” up decimating the Zhou nobility and ushered in “the new political and social forms that characterized the Warring States period.”14 Those on the losing side of these wars often faced a significant decline in social status, and in some cases they were either enslaved or “put to death as sacrificial victims.”15 Further, the pursuit of honor and status not only decimated much of the Zhou aristocracy but it also created incentives to expand the territory of the state and to increase the ranks of the armed forces by relying on infantry soldiers.16 Consequently, Warring States armies were significantly larger than Spring and Autumn armies. In addition, although wars were less frequent, they were longer and more intense, with battle fatalities often in the tens of thousands. Table 3.1 summarizes the number of casualties inflicted by Qin in a handful of battles during the Warring States period. Not only does Table 3.1 show that wars were increasingly intense during the Warring States era, but it also shows that Warring States armies must have been large enough to sustain these high losses. In the Warring States period, warfare was thus no longer the provenance of the aristocracy, but it increasingly included unskilled infantry soldiers from the lower classes, particularly peasants. According to historian Cho-yun Hsu, “The reasons for replacing chariots by infantry are not clear,” but “two causes may be suggested. The first is that chariots 14

Lewis (1990, 51).

15

Hsu (1965, 59).

16

Lewis (1990, 54).

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were quite expensive; the second, that they were inefficient.”17 As a result, “[expanding] an army [that consisted] mostly of chariots could be prohibitively expensive to a state. A solution to the cost problem was the increase of foot soldier units in an army, which lessened the importance of the war chariots.”18 During the Warring States era, “the usual description of the military strength of a state was ‘one thousand chariots, ten thousands of cavalry, and several hundred thousand armored soldiers.’ The number of chariots remained about the same as in the [Spring and Autumn era], while other units of the army were greatly augmented or newly added.”19 By implication, states increasingly relied on the fighting-power of the peasantry. Likewise, the need to win wars generated incentives to harness the agricultural productivity of the peasant class and to create institutional structures that prized individual merit over hereditary connections. In short, the lust for power and war produced incentives to construct a “rational-legal” state that could extract resources and labor from the population.20 Commenting on the importance of agriculture, Lord Shang, a minister of Qin, observed that If the country does not take to agriculture, then, in its quarrels over authority with the various feudal lords, it will not be able to maintain itself, because the strength of the multitude will not be sufficient. Therefore, the feudal lords vex its weakness and make use of its state of decadence; and if…territory is invaded and dismembered, without the country being stirred to action, it will be past saving. A sage knows what is essential in administering a country, and so he induces the people to devote their attention to agriculture.21

As scholars of state formation have noted, the drive to extract resources from the population can potentially generate resistance.22 People do not typically enjoy being economically exploited or being conscripted into the armed forces without being given something in return. If the situation is one of all take and no give, and if the social networks necessary for collective action exist, then rebellion is much more likely to ensue. To stave off rebellion, states need to either create a massive surveillance system that can effectively identify and respond to potential sources of trouble or they need to rule in ways that are more favorable to their subjects. Both strategies were used in varying amounts during the Warring States period. Yet, the ideology of state power in this period was based upon a public philosophy that gave recognition, at least in principle, to the interests of the people.23 17 20 22

18 Hsu (1965, 69–70). Hsu (1965, 69–70). 21 Hsu (1965). Duyvendak (1974, 192). Tin-bor Hui (2005, 170) and Tilly (1992, 99).

19

Hsu (1965, 69–70).

23

McNeal (2000).

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The need to draw on the military and agricultural support of the rural peasantry to prevail in war created an interdependence of interests between the ruling elite and their subjects. Likewise, the need to have government bureaucracies staffed by the ablest and most knowledgeable officials meant that people could rise through the ranks of the Warring States class structure by honing their intellectual skills and abilities. Not only did this create a sense of collective identity between state officials and the rural population but it also meant that intellectuals, state officials, and other elites were increasingly drawn from the lower classes, and in some cases the rural peasantry.24 Education was a means for social advancement, and since members of the intellectual class were increasingly drawn from more humble origins, we can plausibly speculate that they were more likely to empathize with the economic and political plight of the poor. As historian Yuri Pines observes, one important factor behind the increasing attention paid to commoners in [Warring States] texts is the changed composition of the ruling elite … [N]ew recruitment procedures and increasing social mobility allowed … people from humble origins to join the ranks of the elite and to enter the state apparatus. These newcomers brought with them valuable personal experience that made them particularly attentive to the people’s economic miseries. Thus aside from pragmatic concerns with the state’s stability, we cannot neglect the genuine indignation of many thinkers at the misery of commoners. The constant topic of peasants’ “freezing and starving” …, ubiquitous in [Warring States] texts, cannot be dismissed as pure propaganda: It evidently reflects the real empathy of members of the ruling elite for those they ruled. Similar factors may stand behind the strong condemnation of wars and their devastating effects on the general populace, another common topic in contemporary writings.25

The “miseries” of the people were quite severe during the transition to the Warring States period. The transition from feudalism caused large increases in economic inequality. Specifically, changes in methods of extracting surplus value from peasants (i.e., a change from a manorial system to one based on taxation in kind) created a system that encouraged some measure of private ownership in land, which, in turn, created a significant gap between the rich and the poor. In line with the theory put forth in Part I, the fact that political elites were increasingly drawn from humbler origins meant that, at some level, they were more likely to understand and empathize with the welfare of peasants. Taken together, these factors linked the interests of the ruling elite with those of the peasant class, and they are the source of the “people-centric”

24

Hsu (1965, 104).

25

Pines (2009, 200-201).

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political ideology of the Warring States era.26 Although Warring States theorists were firm defenders of monarchism, all of them, even the more authoritarian defenders of Legalism (e.g., Lord Shang quoted earlier), endorsed a political ideology that regarded the material concerns of the people as the objective of good governance.27 Moreover, increasing technological sophistication, the expanding territorial reach of states, and improvements in infrastructure made intra and interstate trade more feasible during the Warring States period. In the Spring and Autumn period, the sheer number of independent states made commercial activities far more difficult and costly, particularly “if each state and city insisted on having its own customs houses to stop the passing [of] goods.”28 In the Warring States era, China was less compartmentalized.29 Thus, not only was the Warring States era characterized by a high degree of interdependence within states but it was also characterized by a good measure of interdependence between states, a factor that may have generated a sense of empathy or common fate between the people of different states. State formation also led to a nascent idea of human equality. The downfall of the hereditary structure of rule in the Spring and Autumn era gave rise to increasingly bureaucratized state structures that depended on the labor of the intellectual class. In the Spring and Autumn era, power and status depended on hereditary connections, but the internecine struggles of the warrior aristocracy created a dearth of people who could credibly govern. In addition, the need to prevail in war and to increase the wealth of the state created a demand to have the best and brightest staff government institutions. Not only did this give rise to the major intellectual schools that I examine in the following section, but furthermore it created a class of people – the “shi,” or scholar-knights – who made their living in service to the state. The rise of the shi prompted many theorists to claim that social status should not be based on hereditary connections, but rather that it should be based on merit. The Confucian scholar Xunzi even came close to making the Enlightenment claim that all people are created equal: Everyone has characteristics in common with others. When hungry he desires to eat; when cold he desires to be warm; when toiling he desires to rest; he wants what is beneficial and hates what is injurious – with these attitudes man is born; he has them without waiting to learn them…. A person can become a Yao or a Yu [two ancient sage kings]…he can become a day laborer or an artisan[,]…a farmer

26 28

27 Pines (2009) and McNeal (2000). Pines (2009, 187–222). 29 Hsu (1965, 116–117). Hsu (1965, 116–117).

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or a merchant; it depends on what training he has accumulated from his ways of looking at things and his habits…30

In the following section, I set the stage for my discussion of the ethics of warfare in ancient China by describing the core political and philosophical concerns of Warring States theorists. The Intellectual Currents of the Warring States System The social and intellectual currents of Warring States China gave rise to four major schools of thought: Confucianism, Legalism, Mohism, and Taoism. The process of state formation created a demand for highly educated government officials. To satisfy the demand, educational institutions, beginning with the Confucian school, started to emerge in the late Spring and Autumn period. Along with the general trends in social mobility, both the masters of these schools and their students were often from the social class that occupied the lowest rung of the ruling elite strata, a class known as the “shi,” or “scholar-knights.” Further, the internecine strife of the late Spring and Autumn period created a gap in the number of people who were capable of staffing state bureaucracies, a problem that benefited the shi by providing them with government positions.31 In a society that increasingly awarded personal merit and intellect, education provided a bridge into the ranks of the upper class. As with most intellectual paradigms, the masters and students of these diverging schools of thought disagreed about a number of things, but there were also some things on which they agreed. First, monarchism was virtually taken for granted. As such, all of them believed that the legislative and administrative authority of the state should rest with one person and his subordinates. The only possible exception was Taoism, which endorsed the quasi-anarchist view that people should avoid government service to seek“inner tranquility,” and that the state should ideally rule without ruling.32 Monarchism was hegemonic for Warring States theorists because many of them believed that there is a strong connection between the well-being of the political system and the basic cycles of nature. They believed that the state should model itself off of the cosmic principles of the Tao (“the Way”). In Chinese political and moral theory, the Tao is something like the rightful path. China scholar Karen Turner suggests that the Tao is 30

31

Quoted in Hsu (1965, 144). Similarly, Mozi argued that “heaven does not discriminate between rich and poor, noble and base, far away, and near at hand,” (Johnston 2010, 75). 32 Pines (2009, 118). See Hsu (1965, 140) and Lewis (1990).

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similar to the idea of natural law in Western philosophy. The only major difference is that the Tao is only accessible to the sage.33 In the Western canon, natural law is accessible to all rational agents, irrespective of specialized knowledge. Yet, like natural law, the Tao serves as a moral principle for evaluating political and social arrangements. In an ancient Chinese text known as the Jingfa, it is written that “the [Tao] gives birth to the law and law is what marks success and failure. Used as a marking line, it clarifies what is crooked from what is straight.”34 As Turner explains, the Tao was seen as “a useful model for ruling because it was at once unified and the source of all things.”35 It is a “timeless, universal, impartial standard and the law that it generates is a reliable guide for the hard decisions that fall to any ruler,” including “when to begin a military campaign and when to wait until conditions are suitable.”36 Warring States theorists did not always agree about the requirements of the Tao, but they all believed that rulers should seek to understand the Tao and that they should explicitly try to model their policies off of it. Warring States theorists endorsed monarchism because they believed that only a sagacious ruler has privileged access to the Tao.37 Like many Western theorists, Hobbes in particular, Warring States theorists believed that the existence of the sovereign state is morally justified because it can keep the people from falling into chaos and anarchy.38 However, they endorsed a monarchical form of government because they felt that only a sage can attain the type of knowledge that is necessary for governing all under Heaven. This does not mean that Warring States theorists were completely dismissive of the notion that ordinary people can move up the hierarchical class structure – far from it. Some of the Confucians, for instance, believed that all people have the capacity to become sages. Whether people achieve their full potential depends upon their degree of moral virtue, knowledge, and work. Nevertheless, only those who have knowledge of the Tao have a rightful claim to govern. Second, almost all Warring States theorists believed that the objectives of good governance are political order and the material sustenance of the people. However, they disagree over how the ruler is supposed to achieve these objectives. Whereas the Confucians believed that the state should create order by cultivating the moral virtues of the ruler, the Legalists believed that the state should impose order through law and punishment. The Mohists believed that the state should create order by extending universal love to all. These differing theories about the essentials of good governance directly influenced how Warring States theorists approached 33 36

Turner (1992). Turner (1992, 23).

34

35 Quoted in Turner (1992, 23). Turner (1992, 22–23). 37 38 Turner (1992, 42). Pines (2009, 32).

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the ethics of war. Confucians scholars believed that the state should try to achieve its goals by cultivating the moral character of the ruler, and by using strategies of nonviolence. By cultivating his virtues, a leader can serve as an exemplar to his people, and lead them down the path of righteousness. Rulers can only use violence when it is absolutely necessary, and even then the motivation must be to promote the welfare of the people. The Mohists believed that offensive warfare conflicts with the obligation to extend universal love to the people, and they believed that it is wrong because it threatens innocent people. The Legalists, who are often compared to political realists, were more comfortable with the use of violence. Yet, even they believed that the objective of state policies must be defined, at least in part, by reference to the interests of the people.39 Thus, despite their differences, Warring States theorists of all stripes believed that the core objective of good governance is to promote the welfare of the people, a view that significantly influenced how they approached the ethics of war. Before discussing these issues in more detail later, in the next section I discuss the evolution of rule of law ideas in early China. The Rule of Law in Ancient China The need to govern vast territories that included an expansive array of people necessitated the creation of a legal system that was based on a nascent idea of the rule of law – a fact that would eventually become more important with the establishment of an imperial system of rule in 221 BC under the hegemonic power of Qin.40 Political power was heavily concentrated in the hands of the ruling elite, but not so much that elite actors could do whatever they wanted. Indeed, as my earlier comments about the rise of the shi indicate, the composition of the ruling elite changed significantly during the late Spring and Autumn and Warring States periods, which had effectively moved away from the hereditary aristocracy.41 The rise of the shi effectively created a “market of talent, in which a gifted person could seek employment at any of the competing courts…. While the rulers did their best to control the movement of average subjects, they apparently excluded shi from this harsh control, accepting as normal a situation in which a shi served’ Qin in morning and Chu in evening.’”42 Likewise, the need to expand the bounds of the state inevitably forced ruling elites to accommodate a wider range of interests. As such, it was generally taken for granted that in domestic and 39 41

See Pines (2009). Pines (2009, 117).

40 42

Turner (1993, 317) and Turner (1992). Pines (2009, 168).

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international affairs states should use force in accordance with “rules.”43 As Victoria Tin-bor Hui observes, In the feudal era, the common people had no right to know the law or why they were punished. In order to win popular support, some rulers began to promulgate legal codes publicly.44

In war, it was generally presumed that the military needed to gain the support of the people in order to prevail, and this required operating in accord with certain rules and procedures. As Mozi argued, rulers cannot do whatever they want, but rather they are subject to the demands of Heaven. Heaven requires that leaders show “universal love” for the people, by which he meant that it requires them to benefit the people impartially, to show no distinction between the “noble” or the “base,” for “all are Heaven’s subjects,” and Heaven will bring “disaster” to those who “kill the innocent.”45 There are two general reasons why a political system might endorse the idea of the rule of law. In constitutional democracies, the rule of law provides states with the institutional mechanisms for controlling arbitrary decisions on the part of the executive. The main objective here is to protect the rights and welfare of individual citizens. The rule of law is usually contrasted with the rule of man; the idea is that constraining the government by impartial laws is one way to protect the rights of individuals against the depredations of states. Warring States regimes were a far cry from liberal constitutional democracies, but ideas like this were common during this period. As Mozi’s writings illustrate, some Warring States theorists believed that acting in accordance with universal standards was a way to advance and protect the well-being of the people. A second reason for endorsing rule of law ideas in ancient China was to maintain uniform predictability in the structure of government so as to protect the state itself “from the weaknesses and ambitions of [incompetent] rulers.”46 Karen Turner observes that there are six elementary principles of the rule of law. Contrary to the interpretations of some scholars, Warring States theorists defended some of these principles: (1) the generality and universality of the law; (2) the idea that law should not be subject to arbitrary whims of rulers; (3) that the administration of justice should follow formal procedures; (4) that the judicial branch of government should be free from executive pressures; (5) that the law should be congruent with the practices of state officials; and (6) that the law should 43 46

Turner (1993, 292). Turner (1992, 18).

44

Tin-bor Hui (2005, 172).

45

Johnston (2010, 27–29).

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be subject to transcendent standards of justice.47 Because there was no such thing as the separation of powers in the Warring States era, the only principle that was not reflected in the Warring States system was principle (4). However, Turner contends that Warring States theorists did defend other rule of law requirements. Moreover, it was their endorsement of rule of law principles that led many Warring States theorists to conclude that the use of force (in domestic and international affairs) had to be subjected to rules. To summarize the discussion thus far, the process of state formation in ancient China led to the development of a people-centric political ideology that emphasized the material needs of the rural populace and the development of a legal system centered on rule of law principles. In contrast to the previous historical period, the idea of gaining access to “human capital” came to dominate the political agenda of Warring States elites.48 Further, the increasing territorial expanse of the state meant that it needed to govern itself according to rules, including rules that govern the use of force. The structural process of state formation thus made the emergence of the rules of war that I discuss in the following section more likely. Yet, state formation did not determine the rise of humanitarian protection ideas. Indeed, the fact that there were varying schools of thought suggests that there was room for ideological flexibility. In the following sections, I examine how Warring States theorists thought about the ethics of war. Consistent with the theory in Part I, I argue that the principles that comprise the “righteous war” tradition bear a clear resemblance to the principles that comprise the just war tradition in the West and the moral grammar in Table 2.1. Further, I argue that even though Warring States theorists and military tacticians had winning of hearts and minds reasons for adopting humanistic ideals, they also adopted them for moral reasons tinged with compassion.

The Righteous War Tradition in Ancient China In contrast to just war theorists in the West, Warring States theorists did not categorize their thoughts on war and peace into clearly definable sets of principles – i.e., jus ad bellum, jus in bello, and jus post bellum. For ease of exposition, however, in this section I present the ancient Chinese approach to warfare by adhering to the traditional just war distinction between jus ad bellum moral principles and jus in bello moral principles. Also, although most of my discussion will focus on the so-called 47

Turner (1992, 7–8).

48

McNeal (2000, Abstract).

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righteous war tradition of Warring States China, I will also make reference to ancient Chinese military treatises, which tend to focus on strategical, tactical, and logistical considerations. As with modern international law, Christian just war ethics, and medieval Islamic jurisprudence, ancient Chinese political and military theorists had a sophisticated tradition of thought devoted to the ethics of war.49 Given their rule of law ideals and people-centric political ideology, Warring States theorists believed that warfare should be executed in accordance with certain rules and that it should only be prosecuted for the benefit of the people. As with the early proponents of just war doctrine in the West, particularly Augustine, Chinese theorists believed that war is a form of righteous punishment that ought not be undertaken at the arbitrary whims of the ruling elite and their military commanders.50 In line with the moral grammar in Table 2.1, many theorists argued that unprovoked wars are clearly wrong, and they are wrong because they threaten the lives and well-being of the innocent. This view comes forth clearly in Mozi’s arguments against offensive warfare: When it comes to killing an innocent man, seizing his clothes and fur garments, and taking his spear and sword, the lack of righteousness is even greater again than entering another’s animal enclosure and taking his horses and oxen. What is the reason for this? It is because the loss to the other is even greater. If the loss to the other is even greater, then the lack of benevolence [and righteousness] is even greater and the crime more serious…51 The killing of one person is spoken of as unrighteous and certainly constitutes one capital offense. Reasoning on this basis, killing ten people is ten times as unrighteous, so certainly constitutes ten capital offenses. Killing a hundred people is a hundred times as unrighteous, so certainly constitutes a hundred capital offenses.52

For Mozi, offensive warfare is a much more serious crime than the killing of one innocent person because it involves the killing of a great many innocent people. However, Mozi, along with many other Warring States theorists, especially the Confucians, argued that punitive violence is entirely justifiable: Deposing tyrannical rulers who brutalize their people is morally permissible, indeed, perhaps even obligatory. Attacking a state that has done no wrong violates a moral imperative that only allows states to use violence against guilty parties. In the Confucian worldview, rulers are not entitled 49 50 52

See Lewis (2006) and Stroble (1998) for a review of ancient Chinese approaches to the ethics of war. 51 Turner (1993); Lewis (2006); Stroble (1998). Johnston (2010, 167). Johnston (2010, 169).

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to control their subjects at their own volition, but rather they are required to abide by a set of basic guidelines for political governance. If rulers failed in their obligations to their people, or if they actively oppressed them, then they ceased to have a legitimate claim on the devotion of their people. In some cases, this justified revolutionary violence from within; in other cases, it justified external intervention from without. In the Book of Historical Documents, an ancient Confucian text that chronicles the early history of China, legitimate violence is almost always regarded as punitive in nature: Kings are permitted to overthrow the rulers of other states, but only if these rulers fail in their obligations to their people.53 Some scholars even believe that this doctrine of the righteous war was an ancient precursor to the modern idea of humanitarian intervention and the Responsibility to Protect doctrine.54 As a reflection of the more pacifist strain of thought in early China, the Confucians believed that the ideal form of government is one that rules without coercion. Good governance, in both internal and external relations, depends upon the virtuous character of the ruler: In order to maintain harmonious social relationships, the ruler must cultivate his own character and serve as a good example for his people. The Confucians believed that by cultivating moral virtue, a righteous leader can serve as an exemplar for his subordinates, with the hope that legal coercion will not be needed to correct vicious behavior. Similar considerations applied to diplomatic relations with other states: The Confucians believed that rulers should not use force to achieve their objectives, but rather they should act virtuously toward other kings and engage with them diplomatically in the hope that they will follow the example of righteous rule – an idea that is very similar in kind to the notion of using “soft power.”55 Social harmony cannot generally be achieved through the use of violence. Instead, it can only be achieved through virtuous action and persuasive diplomacy. Indeed, some interpreters claim that the Confucians were relatively pacifistic in the sense that they believed that “violence is not capable of producing social control.”56 The need to use violence signals a loss of authority. Nevertheless, many Chinese theorists, the Confucians included, did have a well-articulated account of legitimate political violence.57 The Confucian scholar Mencius believed that aggressive violence for the sake of territorial gain is inherently wrong, and he believed that military strategists who undertake such wars should be severely punished.58 That said, Mencius believed that rulers are permitted to use violence in 53 56

54 55 Legge (1865). Wang (2010); Bell (2008); Glanville (2010). Nye (1990). 57 58 Stroble (1998, 173). Chan (2008, 125). Mencius (Book IV, A14).

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self-defense. In response to a question from Duke Wen of T’eng about the legitimacy of defending oneself against predatory invasions, Mencius responded as follows: “This is a question that is beyond me,”…“If you insist, there is only one course of action I can suggest. Dig deeper moats and build higher walls and defend them shoulder to shoulder with the people. If they would rather die than desert you, then all is not lost.”59

And along with other Confucian scholars, Mencius believed that rulers are permitted to overthrow morally depraved dictators who brutalize their own people.60 Similarly, in an extended commentary on the principles of warfare, the Confucian scholar Xunzi made the following points: Chen Xiao questioned Master Xun Qing, saying: Sir when you debated the principles of warfare, you constantly stressed that humanity and justice constitute its fundamental basis. If it is true that one who is humane loves others and the one who is moral accords with rational order, then once again how is it that such persons could engage in warfare? For, as a general rule, the reason for which they possess armies is that they would quarrel over or steal something. Master Xun Qing replied: It is not as you understand. That humanity of which I spoke does indeed involve loving others, but it is just such love for others that causes a hatred of whoever does injury to them. That morality of which I spoke does involve acting in accord with rational order, but it is precisely according with rational order that causes…hatred of whoever disrupts it. The military principles of which I spoke are just the means whereby to prohibit violent…aggressive behavior and to prevent harm to others; they are not the means to contention and confiscation.61

Thus, even though Confucian scholars generally believed that “a virtuous ruler had no need to use military force because he would have no enemies,”62 they also believed that violence can sometimes be used for legitimate purposes. Moreover, the idea of the righteous, punitive expedition was not just endorsed by the Confucians, but rather it pervaded ancient thinking on warfare and statecraft.63 Indeed, the idea of the righteous war even influenced how military strategists and tacticians thought about the ethics of warfare. For example, this idea pervades the Seven Military Classics of Ancient China, a group of texts that are often noted for their Machiavellian realpolitik philosophy. This collection is comprised of seven short treatises that address everything from grand strategy to the logistics of conducting 59 62

Mencius (Book I, B.13). Johnston (1995, 45).

63

60 61 Bell (2008, 235). Xunzi (Book XV, 15.2). Johnston (1995, 69) and Lewis (2006).

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military expeditions: The Tai Kung’s Six Secret Teachings, The Methods of the Ssu-Ma, Sun-Tzu’s Art of War, Wu-tzu, Wei Liao-tzu, Three Strategies of Huang Shih-Kung, and Questions and Replies between T’angT’ai-tsung and Li Wei-kung.64 Although the authors of these texts advocated strategies and tactics that run directly counter to Confucian ideals of virtue,65 they tended to accept the notion that the object of good governance is the well-being of the people. The realpolitik orientation of these texts comes from the idea that the art of war is a necessary tool for maintaining political authority. However, as Ralph Sawyer explains, the idea that war is a useful tool for maintaining authority was bound up with the idea that it is a “necessary means for chastising…evil and rescuing the oppressed.”66 The opening lines of The Methods of the Ssu-ma clearly reflect this attitude: In antiquity, taking benevolence as the foundation and employing righteousness to govern constituted “uprightness.” However, when uprightness failed to attain the desired [moral and political] objectives, [they resorted to] authority [ch’uan]. Authority comes from warfare, not from harmony among men. For this reason if one must kill men to give peace to the people, then killing is permissible. If one must attack a state out of love for their people, then attacking it is permissible. If one must stop war with war, although it is war it is permissible. Thus benevolence is loved; righteousness is willingly submitted to; wisdom is relied on; courage is embraced; and credibility is trusted. Within, [the government] gains the love of the people, the means by which it can be preserved. Outside, it acquires awesomeness, the means by which it can wage war.67

While the author of The Methods of the Ssu-ma clearly recognizes that war is necessary for maintaining power, he also argued that there should be restraints, for “those who love warfare will inevitably perish.”68 For a set of texts that are often taken as encapsulating a realpolitik Chinese strategic culture, the fact that these texts reflect any moral considerations at all is particularly telling.69 It shows that the righteous war view that the goal of using military force is to promote the welfare of the people and to punish evildoers was hegemonic in ancient China. Although it is an open question whether Warring States decision-makers and their Imperial Chinese successors actually followed righteous war 64 65

66 69

Sawyer (1993). For example, the T’ai-Kung advocated debauching foreign kings with gifts and “beautiful women” so as to encourage their subordinates and their people to become estranged from them (Sawyer 1993, 56). In addition, the Seven Military Classics frequently encouraged the use of secrecy and deception, tactics that did not sit well with the Confucian idea that virtuous leaders can win over their enemies by displaying benevolence and moral rectitude. 67 68 Sawyer (1993, 116). Sawyer (1993, 126). Sawyer (1993, 126). Johnston (1995).

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principles,70 the idea that states must adhere to humanistic values was largely taken for granted. The Rules of War in Ancient Chinese Texts Discussions of the righteous war in ancient Chinese thought tend to focus on jus ad bellum concerns, and as a result, ancient writings on warfare typically did not include elaborate discussions of rules for protecting civilians and other war victims. That said, some writers explicitly stipulated that virtuous soldiers should distinguish between the guilty and the innocent, especially when trying to occupy foreign territory in a righteous war. This view comes forth most clearly in the Confucian texts. Xunzi, for instance, argued that “A True King does not butcher the inhabitants of a city, does not move his army by stealth, does not detain the people unduly, and does not commit the army to the field for more than a single season.”71 As a result, he maintained that “those who live in anarchy rejoice in his government and those discontent with their own ruler desire that he should come.”72 Consistent with the Confucian view that a true king is supposed to rule for the benefit of the people, Xunzi believed that a true king can engage in punitive expeditions against corrupted rulers. Rulers become corrupted when they violate the Way and fail in their moral responsibilities to their people. By contrast, a true king acts virtuously at all times and orders his army to refrain from slaughtering the civilian population. Indeed, consistent with the Confucian view that exemplifying one’s virtue can help bring about moral and political renewal, Xunzi believed that a true king’s army can bring about moral change only by acting virtuously toward the people. In a dialogue that is worth quoting at length, the Confucian scholar Mencius argued that in a “punitive expedition a true king does not kill the defenseless,” nor does he “destroy or plunder”; rather, a true king “sets up a new ruler in consultation with the people.”73 In this dialogue, Mencius responds to a series of questions about whether the state of Qi – transliterated as Ch’i – had a right to attack the state of Yan – transliterated as Yen. Mencius argues that although Yan can be attacked, Qi is not the “Heaven-appointed officer,”74 and therefore it has no rightful authority to attack Yan. In articulating this analysis of the rightful punitive expedition, Mencius spells out his view of how a virtuous king should treat the civilian population. He argues that not only must a true 70 73 74

71 72 Wang (2010). Xunzi (Book XV, 15.1f ). Xunzi (Book XV, 15.1f ). Twiss and Chan (2012, 461). Note that this is not a quote from Mencius. Twiss and Chan (2012, 465).

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king see to it that his forces refrain from killing the young and the old, but that they must also respect culturally sacred objects. Ch’i attacked and defeated Yen. King Hsuan said, “Some advise me against annexing Yen while others urge me to do so…. What would you think if I decided on annexation?” “If in annexing Yen,” answered Mencius, “you please its people, then annex it…. If in annexing Yen you antagonize its people, then do not annex it…” Ch’i attacked and annexed Yen. The feudal lords deliberated how they might go to the aid of Yen. King Hsuan said, “Most of the feudal lords are thinking of going to war with me. What measure should I take to meet the threat?” “I have heard,” answered Mencius, “of one who gained ascendancy over the Empire from the modest beginning of seventy li square. Such a one was T’ang. I have never heard of anyone ruling over a thousand li being frightened of others. “The Book of History says, ‘In his punitive expeditions T’ang began with Ke.’ With this he gained the trust of the Empire, and when he marched on the east, the western barbarians complained, and when he marched on the south, the northern barbarians complained. They all said, ‘Why does he not come to us first?’ The people longed for his coming as they longed for a rainbow in time of severe drought. Those who were going to market did not stop; those who were ploughing went on ploughing. He punished the rulers and comforted the people, like a fall of timely rain, and the people greatly rejoiced… “Now when you went to punish Yen which practiced tyranny over its people, the people thought you were going to rescue them from water and fire, and they came to meet your army, bringing baskets of rice and bottles of drink. How can it be right for you to kill the old and bind the young, destroy the ancestral temples and appropriate the valuable vessels? Even before this, the whole Empire was afraid of the power of Ch’i. Now you double your territory without practicing benevolent government. This is to provoke the armies of the whole Empire. If you hasten to order the release of the captives, old and young, leave the valuable vessels where they are, and take your army out after setting up a ruler in consultation with the men of Yen, it is still not too late to halt the armies of the Empire.”75

While this dialogue implicitly suggests that Warring States armies did not always adhere to a clear set of guidelines for distinguishing soldiers from civilians, it does show that Mencius believed that states and their armed forces are morally required to protect the civilian population. Beyond the Confucian classics, the notion that virtuous rulers should refrain from wantonly slaughtering innocent people was fairly widespread. For example, although Mozi did not articulate a clear delineation between combatants and noncombatants, the idea that virtuous states should not kill innocent people follows directly from his arguments against offensive warfare. As I mentioned earlier, Mozi believed that 75

Mencius (Book I.B.10–11).

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offensive warfare and conquest are morally wrong because they threaten innocent people. The Seven Military Classics put forth similar ideas about killing innocent people. In the T’ai Kung’s Six Secret Teachings, a section on occupying territory contains the following recommendations: Do not set fire to what the people have accumulated; do not destroy their palaces or houses, nor cut down the trees at gravesites or altars. Do not kill those who surrender nor slay your captives. Instead, show them benevolence and righteousness, extend your generous Virtue to them. Cause their people to say “the guilt lies with one man.” In this way the entire realm will…submit.76

Similarly, in a much clearer statement of the distinction between combatants and noncombatants, The Methods of the Ssu-ma issues these commands: When you enter the offender’s territory, do not do violence to his gods; do not hunt his wild animals; do not destroy earthworks; do not set fire to buildings; do not cut down forests; do not take the six domesticated animals, grains, or implements. When you see their elderly or very young, return them without harming them. Even if you encounter adults, unless they engage you in combat do not treat them as enemies. If an enemy has been wounded, provide medical attention and return him.77

The Wei Liao Zi likewise recommends that “[when employing] the military” one should “not attack cities that have not committed transgressions or slay men who have not committed offenses.”78 In a passage that specifically connected ideals of restraint with empathic concern, The Methods of the Ssu-Ma held that “in antiquity,” soldiers displayed “sympathy for the wounded and sick.”79 In the Lushi Chunqiu, an official text that was compiled by Lu Buwei, the prime minister of Qin right before its rise to imperial hegemony, similar claims are made about the need to safeguard the innocent in wars of conquest. The Lushi Chunqiu generally accepted the Confucian view that it is morally permissible to wage punitive wars to overthrow corrupted leaders. Indeed, it held that “if weapons are raised in a righteous cause, then both aggressive and defensive warfare are proper. If the cause is not righteous, then neither is proper.”80 Morally permissible wars are those that seek to punish corrupt leaders who lack the Tao.81 Violence against the innocent, i.e., against those who have done no wrong, is inherently wrong. Applied to battlefield practices, the Lushi Chunqiu

76 79 81

77 78 Sawyer (1993, 87). Sawyer (1993, 128). Sawyer (1993, 254). 80 Sawyer (1993, 127). Knoblock and Riegel (2000, 182). Knoblock and Riegel (2000, 180).

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holds that the armed forces of states should refrain from indiscriminate pillage and plunder:82 Violence and deception are the opposites of reason and morality. These two conditions cannot both prevail and cannot coexist. Hence, when a righteous army enters the borders of an enemy, all the knights there know they are going to be protected, and the black-headed people know they will not die. When it reaches the outskirts of the capital, the army does not destroy the Five Foods, plunder graves, cut down trees, burn stores and supplies, torch houses, or confiscate livestock. The righteous army, by whom it takes prisoner or sends home, gives concrete shape to what it likes and despises. It is consistent with the people’s expectations that the army should seize the enemy’s goods. If it acts thusly when there are instances where those who are recalcitrant and envious continue…their misdeeds and are disobedient, then though one resorts to military might, it is entirely proper. The heralds shout out and proclaim: “The soldiers have come to save the lives of the people. You sirs, on high, lack the [Tao]: you are arrogant and decadent, predatory and oppressive, licentious and selfish. You have cast out the institutions of the sages, slandered the First Kings, and reviled the old statutes. Above you disobey Heaven; Below you mistreat the people. You tax without limit and make further exactions without tiring. You punish and murder the innocent and congratulate and reward the undeserving. Such people are punished by Heaven, opposed by others, and are unfit to rule. Thus, now our army has come to execute the man who is unfit to rule, to eliminate the enemy of the people – all in compliance with the [Tao] of Heaven. Those people who disobey the [Tao] of Heaven and give aid to the enemy of the people will be killed and their families executed without mercy… Thus, in conquering a state, do not harm the people. Execute only those who deserve execution.83

Although the author of the Lushi Chunqiu adhered to a notion of collective responsibility that goes against modern liberal sensibilities – notice the point that the families of the guilty will be executed without mercy, he clearly proclaims that virtuous armies should neither kill nor pillage the innocent. Incidentally, Qin was one of the most brutal states in the Warring States system, and Tin-bor Hui notes that its use of ruthless military stratagems was one of the secrets to its success in establishing control over China.84 Even though Qin was known to have massacred defeated troops and civilians in battles that took place in 293 and 279 BC, Lu Buwei took (de facto) command of Qin much later in 250 BC. John Knoblock and Jeffrey Riegel note that “the military doctrines opposing 82 84

83 Lewis (2006). Knoblock and Riegel (2000, 185–186). Tin-bor Hui (2005, 86–87).

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the killing of innocent people and advocating the practice of ‘righteous warfare,’…derive from the actual military strategy employed by Lu.”85 Because the Lushi Chunqiu was composed as a manual for ruling a universal empire, it is likely that its recommendations on the ethics of restraint were strategic: Binding oneself by impartial rules that others can accept is a rational way of winning their support. As one passage notes, “If one desires to be made Son of Heaven, one must not fail to examine what attracts the people.”86 Yet, this does not imply that the moral beliefs on which these claims were based were any less genuine: The textual evidence shows that Warring States theorists clearly connected the idea of protecting innocent people with the ideals of benevolent governance. This means that even though civilian protection ideas may have been adopted for strategic reasons, they also had a strong moral foundation. I address this issue in more detail in the concluding section. Finally, although the Taoists believed that warfare is a sign of “the disruption of the natural pattern of things,”87 and that “weapons are instruments of evil omen,” they also believed that states are permitted to wage war when it is absolutely necessary.88 As chapter 31 of the Tao Te Ching notes, a “superior man” only wages war “on the compulsion of necessity. Calm and repose are what he prizes; victory (by force of arms) is to him undesirable.”89 As Ellen Zhang points out, the Taoist argument against warfare is rooted in a fundamental concern about “preserving life.”90 Indeed, as the Tao Te Ching stipulates, the reason why a superior man finds “victory (by force of arms)…undesirable” is because it typically involves large-scale loss of life: “To consider this desirable [i.e., victory by force of arms] would be to delight in the slaughter of men; and he who delights in the slaughter of men cannot get his will in the kingdom.”91 Furthermore, chapter 31 of theTao Te Ching holds that in postwar commemoration rituals, “he who has killed multitudes of men should weep for them with the bitterest grief.”92 All of this suggests that ancient Chinese theorists endorsed something like the principle of distinction. But what about the intention/side-effect distinction and the principle of proportionality? Although Warring States theorists did not expressly articulate the principle that intentional killings of civilians are morally worse than unintentional killings of civilians, close scrutiny of ancient texts reveals that ancient Chinese peoples did believe that intentional moral infractions are morally worse than unintentional or inadvertent infractions. For example, The Book of Historical Documents 85 87 90

86 Knoblock and Riegel (2000, 12). Knoblock and Riegel (2000, 92). 88 89 Zhang (2012, 473). Legge (1891, 73). Legge (1891, 74). 91 92 Zhang (2012, 482). Legge (1891, 74). Legge (1891, 74).

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holds that the penal code for a just society should mete out punishments according to the degree to which the crime was intended.93 In a supposed dialogue between Emperor Shun and his successor Yu – two legendary rulers who governed China centuries before the Warring States period – Shun asks Yu to consider being his vice-regent. Claiming that he is not the best one for the position, Yu then suggests that Emperor Shun consider Kaou Yaou, the Minister of Crime. The dialogue then shifts to Emperor Shun and Kaou Yaou, who together make several points about the ideal penal code. Kaou Yaou specifically commends Emperor Shun for pardoning “inadvertent faults” and for punishing “purposed crimes.”94 Though these points are not made in reference to the use of military force, they suggest that ancient Chinese peoples regarded intentional or “purposed crimes” as a bigger moral problem than “inadvertent faults.” Therefore, they may have accepted the intention/side-effect distinction. As for the principle of proportionality, ancient Chinese texts do not clearly state that armies are supposed to weigh anticipated military gains against unintended civilian losses. That said, many of them unequivocally emphasize the need to minimize the moral costs of war. For example, Xunzi thought that a virtuous king should try to limit wartime suffering for “soldiers and civilians alike.”95 When others defend the ramparts of their cities and send out knights to do battle with me and I overcome them through superior power, then the number of casualties among their population is necessarily very great. Where casualties have been extreme, the population is bound to hate me with vehemence. If the population detests me, then each day their desire to fight against me will grow.96

This passage clearly articulates a strategic winning of hearts and minds logic for avoiding collateral damage. However, as I discuss later, the overwhelming concern of Confucians such as Xunzi was to encourage rulers to exemplify moral virtue, both to their own subjects as well as to their enemies. The Seven Military Classics reflect a similar concern about the need to minimize violence. While they do not “explicitly” mention the principle of proportionality, they repeatedly emphasize the importance of winning without fighting, especially Sun Tzu’s Art of War.97 In what is perhaps the “most famous and memorable saying” in the Art of War,98 Sun Tzu advocates strategic restraint: 93 94 95 96

Nylan (2001, 148). Legge (1865, 58–60). The relevant quotations are located in the section of The Book of Historical Documents entitled The Counsels of the Great Yu. Twiss and Chan (2012, 460). Note that this is not a quote from Xunzi. 97 98 Xunzi (Book IX, 9.7). Lo (2012a, 426). Lo (2012a, 422).

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In general, the method for employing the military is this: Preserving the [enemy’s] state capital is best, destroying their state capital second-best…. [A]ttaining one hundred victories in one hundred battles is not the pinnacle of excellence. Subjugating the enemy’s army without fighting is the true pinnacle of excellence.99

As with the text as a whole, this passage clearly emphasizes the strategic logic of winning without fighting. However, in light of his view that military commanders must be wise and benevolent, Sun Tzu’s emphasis on minimizing violence also had moral undertones. As Ping Cheung-Lo observes, Sun Tzu is not just interested in winning, but winning at an acceptable cost. Winning by decimating cities brings about the same result as winning by covert stratagems, but it does so with an excessive amount of violence and destruction.100 Indeed, after spelling out why it is important to capture the enemy’s fortified cities “without attacking them,” Sun Tzu concludes that commanders “must fight under Heaven with the paramount aim of ‘preservation.’”101 As Ralph Sawyer points out, the term “preservation” in this context not only connotes the idea of preserving one’s military capabilities but it also connotes the idea of “‘preserving’ others” so that one is “more likely to be welcomed by the populace.”102 This is clearly not the same thing as the Western in bello proportionality principle. But insofar as it requires military commanders to make moral trade-offs between winning with high costs and winning with low costs, it moves in the same basic “direction.”103 Conclusion The evidence reviewed in this chapter shows that Warring States theorists largely accepted the idea that innocent people should not be targeted in armed conflict. As the sovereign state system began to take shape in the early Warring States era, this led to the development of a “peoplecentric” moral and political ideology that required states to focus on the interests and well-being of ordinary people. As a result, not only did Warring States theorists come to believe that the goal of domestic governance is to promote the well-being of the people, but in addition they came to believe that the use of military force in international affairs should be regulated by an overall focus on safeguarding the lives and livelihoods of innocent civilians. With respect to ad bellum considerations, this meant that states were only allowed to undertake military expeditions in selfdefense or to free oppressed peoples from tyrannical rulers; with respect 99 102

100 Sawyer (1993, 160–161). Lo (2012b, 121–123). 103 Sawyer (1993, 439), note 36. Lo (2012b, 122).

101

Sawyer (1993, 161).

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to in bello considerations, it meant that states and their armed forces were to avoid killing noncombatants and to minimize the destruction of enemy lands. Why did Warring States theorists believe that innocent people should be protected in war? As I suggested in the methodological section of Chapter 2, there are three possible explanations for why civilizations converge on civilian protection norms: (1) a winning of hearts and minds logic; (2) a reciprocal enforcement logic; and (3) a moral psychology logic. With respect to the reciprocity logic, there is very little evidence that civilian immunity ideas were codified into clearly discernible legal norms. There is also little evidence that Warring States leaders believed in protecting civilians so that they could credibly ensure that their own population would be safe from harm. In fact, most discussions of civilian immunity advocate unilaterally protecting civilians, and there is virtually no discussion of the impact that this will have on the future wartime conduct of enemy soldiers. Hence, the reciprocal enforcement logic does not explain why civilian protection ideas emerged in ancient China. This leaves the winning of hearts and minds logic and the moral psychology logic. Both of these views accept that moral ideas influence the norms that people use to regulate the use of force, but they disagree about the factors that cause people to accept or endorse specific moral arguments. The winning of hearts and minds logic holds that power-political motives encourage people to use moral norms to achieve strategic objectives. As realists and rationalists might argue, state officials in Warring States China had clear strategic reasons to avoid slaughtering civilians: Killing civilians can encourage resistance, and this can make it harder to expand one’s influence. Yet, three key pieces of evidence cast doubt on the winning of hearts and minds logic, and point toward a role for the kinds of moral psychological factors outlined in Part I. First, the winning of hearts and minds logic does not account for the specific arguments that Warring States theorists often made about the moral legitimacy of using military force and avoiding civilian casualties. Not only did they sometimes defend theories that were at odds with the material interests of states, but in some cases they specifically argued that the reason for avoiding civilian casualties was to protect innocent people, not to profit the state. For example, in his discussion of aggressive warfare that I quoted earlier, Xunzi argued that territorial conquest is an immoral cause of war. For Xunzi, states can only wage war for legitimate reasons, which for him included what we now call humanitarian intervention, or the Responsibility to Protect.104 Because powerful states often have a strong interest in conquering

104

Xunzi (Book XV, 15.2) and Glanville (2010).

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territory, Xunzi’s argument is not epiphenomenal to power-political considerations. Also, both Xunzi and Mencius believed that a true king would never “perpetrate one wrongful deed or…kill one innocent man in order to gain” an empire, a view that clearly suggests that rulers must refrain from killing civilians due to the intrinsic wrongfulness of the act, not whether it is necessary for building a stable empire.105 Thus, Warring States theorists were not just concerned about power. Second, although state formation does seem to have increased the social power of ordinary people, the “early Chinese states were far from democratic,”106 and this means that people had very few institutional resources for holding their superiors accountable. An interdependence of interests between states and peasants was certainly relevant for the development of humanistic moral ideas in ancient China, but interdependence coupled with severe political inequalities could have led to more oppression rather than less, and as Victoria Tin-bor Hui aptly suggests, in some cases it did.107 Indeed, although Legalist scholars such as Han Feizi did not advocate killing innocent people,108 they were generally more willing to support rigid, authoritarian policies to maintain law and order. In short, because the process of state formation also created power-political incentives to ignore the interests of civilians, it cannot fully explain why many Warring States theorists endorsed a peoplecentric political ideology that required treating the civilian population with compassion. Finally, though it is difficult to test whether emotional factors played a role in the evolution of civilian protection ideas in ancient China, there is some evidence that empathetic concern likely played an important role in the process. Not only did the process of state formation require Warring States theorists and political leaders to take the lives and well-being of ordinary people into account in the making of state policy, but the moral arguments that they made strongly imply that empathic concern governed how some Warring States thinkers thought about the need to extend benevolence to the people. This comes forth most clearly in the moral psychology of Mencius. Mencius believed that compassion is a core component of human morality. In a passage that reflects the logic of the empathy-altruism hypothesis, Mencius observed that

105 106 108

Mencius (Book II.A.2). For a discussion of the similarities between Mencius and Xunzi, see Twiss and Chan (2012, 462–463). 107 McNeal (2000, 80). Tin-bor Hui (2005, 54–108). Indeed, Han Feizi believed that “if the ruler … slaughters innocent people, then ruin is possible,” (Book V, 137).

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No man is devoid of a heart sensitive to the suffering of others. Such a sensitive heart was possessed by the Former Kings and this manifested itself in compassionate government. With such a sensitive heart behind compassionate government, it was as easy to rule the Empire as rolling it on your palm. My reason for saying that no man is devoid of a heart sensitive to the suffering of others is this. Suppose a man were, all of a sudden, to see a young child on the verge of falling into a well. He would certainly be moved to compassion, not because he wanted to get in the good graces of the parents, nor because he wished to win the praise of his fellow villagers or friends, nor yet because he disliked the cry of the child. From this it can be seen that whoever is devoid of the heart of compassion is not human, whoever is devoid of the heart of shame is not human, whoever is devoid of the heart of courtesy and modesty is not human, and whoever is devoid of the heart of right and wrong is not human. The heart of compassion is the germ of benevolence; the heart of shame of dutifulness; the heart of courtesy and modesty, of observance of the rites; the heart of right and wrong, of wisdom. Man has these four germs just as he has four limbs.109

While the conception of morality set forth in this passage was not shared by all the Confucians,110 it nonetheless illustrates two key points. First, it illustrates the importance of empathy for morality: Compassion is described as the cause of benevolence, which in turn is the virtue that true kings are supposed to exemplify to the people. Second, it illustrates a common cause of empathy: witnessing another person, in this case a young child, in distress. Much like Rousseau’s view that compassion is a natural sentiment that carries people without thinking to the aid of others, Mencius argued that observing others in distress causes feelings of compassion, and that compassion motivates altruism. Although Mencius does not directly state that increased contact with the victims of warfare encourages compassion and that this is the reason why he and other Confucians advocated restraint in war, this is a reasonable conjecture in light of his views about the causes of compassion (seeing others in distress) and his views about the moral importance of humane governance. Moreover, the fact that he lived during a period of immense political turmoil and that he tried to convince Warring States leaders to be mindful of the needs and interests of the people suggests that sympathy for the potential victims of war caused him to advocate principles of restraint in a way not unlike the norm entrepreneurs that constructivists frequently emphasize. Something similar can be said about Mozi. In contrast to the Confucian-Mencian view that human beings are morally justified in favoring those who are near and dear, Mozi thought that they should 109 110

Mencius (Book II.A.6). Xunzi famously rejected the Mencian view that human beings are essentially good.

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exercise universal love. Though Mozi clearly recognized that people have stronger feelings for friends and family members, he argued that people should make an active effort to be less partial in how they treat others, both in their daily lives and in politics. He defended this view because he believed that partiality was the main source of strife in the Warring States era.111 To decrease strife, Mozi argued that people should expand their sphere of ethical concern. As Curie Virag points out, he tried to get people to expand their sphere of concern not just by employing rationally compelling arguments, but also by getting them to see that “there is a commonality of experience that all human beings can draw from.”112 In other words, he tried to get people to exercise their perspective-taking abilities. According to Virag, “the following passage” of the Mozi “illustrates how this works”:113 Nowadays, if a mother who is carrying her child on her back while drawing water lets the child fall into the well, she will certainly follow and drag it out. Nowadays, if there is a disastrous year with famine among the people who are starving by the roadside, this is a much greater source of distress than dropping a child. Can this not be recognized?114

Due to the spotlight nature of empathy, people are not “naturally inclined to care about large-scale disasters in the same way that we would care about the harm that befalls us personally.”115 However, if their understanding of a situation is reframed, then it should be possible “to evoke the same kind of sympathy and concern as one feels when one’s own child is in danger.”116 Just as humanitarian organizations in modern-day politics use photographs and personalized stories to encourage people to empathize with war victims,117 Mozi reasoned by analogy to encourage a broader level of moral concern rooted in empathy. This approach is reflected in his arguments against offensive warfare, where he argues that killing a hundred of people is “a hundred times as unrighteous” as killing one person. Consequently, Mozi believed that “the gentlemen of the world” should condemn offensive warfare.118 Though he develops a logically compelling argument for why offensive wars are wrong, he negotiates this task by getting people to focus on the immorality of a single act of killing: Since killing one person is morally wrong, killing a hundred people is a hundred times worse. However, he also recognizes that many people fail to make this inference, most likely because of the spotlight nature of empathy and the identifiable victim

111 114 117

Johnston (2010, 133). Johnston (2010, 33–35). Jeffery (2016, Chapter 7).

112

113 Virag (2017, 71). Virag (2017, 71). 116 Virag (2017, 72). Virag (2017, 72). 118 Johnston (2010, 169).

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effect. As with his point about famine, Mozi criticizes offensive war by getting people to reframe how they think about the statistical aspects of warfare. Instead of simply focusing on overall casualty counts, he encourages people to see how large-scale death and destruction is a macrocosm of small-scale killing. In short, he uses analogical reasoning to get people to see how statistics can bleed. Placed in the context of his time, Mozi used emotional arguments to try to reframe how Warring States peoples thought about the ethics of killing in war. These considerations suggest that empathic concern played a major role in the development of civilian protection ideas in early China. Though textual data only provides an imperfect measure of emotions, the available evidence suggests that sympathetic concern led Warring States theorists to argue for setting restraints on the use of military force – restraints that would come to define the culture of Confucian antimilitarism that has continued to dominate Chinese thinking about war for well more than two thousand years.119 This means that even if the historical record of ancient and imperial China contains divergent cases that do not neatly fit the expectations of the theory set forth in Part I, they are not likely to be Type (4) cases, i.e., cases where there are real cultural differences in the underlying norms. This is because the culture of ancient China had norms for safeguarding the innocent.

119

For a critical discussion of Confucian antimilitarism, see Wang (2010).

4

War and Peace in Islamic Law Cultural Evolution and the Ethics of War in Early Islam

In contemporary world politics, the ethics of war in Islam has become the subject of heated debates, most of which center on the question of whether Islamic law permits deliberate attacks on civilians. While critics of Islam believe that it allows for, and in some cases directly requires, attacks on civilians, in this chapter I argue that the Islamic norms of warfare do not allow soldiers to target innocent civilians. Notwithstanding radical fringe groups like al-Qaeda or the Islamic State of Iraq and Syria (ISIS), the idea that the Muslim faith disregards the interests of civilians in armed conflict, is false. Like many religions, Islam emerged as a universalistic faith whose adherents believed in a divine mandate to unify humankind under a single ethical, political, and spiritual system. Efforts to achieve this goal required varying degrees of peaceful and violent instruments, but, to that extent, Islam is no different from Christianity. To be sure, the rapid spread of Islam in the Near East, Mesopotamia, North Africa, and parts of Spain was mostly the result of superior military force and strategy, all justified by the religious objective of subduing the peoples of the earth. Yet, even in the earliest stages of the Islamic empire, the use of violence was regarded as being subject to normative restraints. As I show in this chapter, the restraints imposed by Islamic law are similar in content to the restraints imposed in early China and the West.1 This chapter contributes to our understanding of the emergence of the laws of war in early Islamic civilization. In recent years, a number of scholars have argued that the laws of war in Islam are fairly similar in content to the jus in bello rules of the European just war tradition, but very few theorists have attempted to explain how these laws came about.2 Here, I argue that existing theories of international norms cannot fully 1 2

For a background on early Islam and relations with surrounding groups, see Donner (1981) and Levy-Rubin (2011). Kelsay (2006); Kelsay (2007); Johnson (1997); Ali and Rehman (2005); Silverman (2002).

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explain the emergence of the jus in bello rules of war in Islamic law. As suggested in Chapter 2, structural-systemic and materialist theories of norm emergence hold that the material and social environment has a powerful influence on the evolution of social norms. Consistent with this approach, it is certainly true that the social environment of early Islam exerted a powerful influence on the Islamic laws of war. Indeed, in line with my analysis of state formation and the norms of war in ancient China, some evidence indicates that the push to expand the Islamic state may have caused elite actors to adopt a policy of self-restraint toward the inhabitants of newly conquered regions.3 Yet, it is hard to find any direct evidence that links the formation of the Islamic state to the evolution of civilian protection ideas, and in fact the evidence suggests that these norms most likely predated the rise of Islam. This implies that a structural-systemic or materialist account of civilian protection norms cannot fully account for their emergence in early Islamic law. But if the Islamic laws of war are simply an “Islamicized” version of preexisting cultural norms, then one might argue that a constructivist or rationalist account might be adequate. However, I argue that, on their own, constructivism and rationalism face serious problems in trying to account for the evolution of the laws of war in early Islam. First, the fact that Islamic legal theorists adopted norms of war that are similar to those that arose in ancient China and in the West raises a problem for constructivist theories of international norms. Second, although considerations of “enlightened selfinterest” should encourage political leaders to adopt civilian protection rules, a closer analysis of early Islamic history suggests that Muslim leaders endorsed jus in bello restraints for normative reasons, not for reasons of rational self-interest or for concerns about reciprocal enforcement. Third, constructivist and rationalist theories cannot fully explain why certain cultural norms survived the transition from the pre-Islamic era to the era of the Islamic state. As I illustrate later, pre-Islamic peoples followed a wide variety of social norms concerning the use of force. For example, Bedouin tribesmen used to follow a tacit agreement that they can only fight during certain times of the year, and that some months are off-limits entirely. Though Muslims still believe these months are sacred, some scholars argue that over time these norms evolved to permit the use of force in self-defense.4 Yet, Muslim scholars never abandoned the notion that women and children cannot be intentionally slaughtered, nor did they abandon the norm that enemy soldiers cannot be mutilated. What explains the difference between these norms? One plausible conjecture is that the restrictions against killing 3 4

See Donner (1981, 240) and Donner (1986) for a discussion. Firestone (1999, 132).

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women and children are based on a shared moral grammar, one that has a strong emotional appeal. But if this is true, then how do we explain extremist violence? Indeed, if the emotive appeal of civilian immunity norms is so powerful, then how do we explain why groups like ISIS routinely target civilians? Although it is beyond the scope of this book to examine extremist violence in the detail that it requires, I argue that extremism does not falsify the theory put forth in Part I. As I explained in Chapter 2, even though civilian protection norms have a strong emotional appeal, their effect on behavior is not always motivationally decisive. In extreme cases, the grouporiented nature of moral cognition can override them, as can the desire for in-group purity. The phenomenon of ethnic cleansing duly shows how the in-group/out-group nature of morality can have disastrous consequences for innocent civilians. In this chapter, I argue that motives like this can help explain why Islamist extremist groups like ISIS routinely violate civilian protection norms, despite the fact that Islamic law prohibits intentional attacks on civilians. Furthermore, the social science literature on radicalization suggests that in-group dynamics often play a significant role in motivating people to join extremist groups that carry out attacks on civilians. Drawing from this literature, in the final section of this chapter I argue that even though extremist groups of all types are a hard case for my argument, they do not undermine the theory set forth in Chapter 2. They are exceptional cases, and, indeed, exceptions that underscore the outer limits of the theory. However, they do not undermine the central claim that I make in this book. Indeed, since terrorist violence is itself quite exceptional,5 my argument helps account for the much larger population of people who forthrightly reject it. To demonstrate these claims, in what follows I begin with a brief discussion of the sources of law in Islamic jurisprudence along with a discussion of the major schools of Islamic law. Second, I discuss the structural-systemic and cultural background of the rise of the Islamic state in early seventh century AD. This discussion will help us better understand the inadequacies of structural-systemic theories and constructivist theories alike. Next, I show how my account of moral discourse helps to explain why early Muslims adopted the idea that certain groups of people should not be deliberately slaughtered in war. Finally, although the main focus of this chapter is on testing the theory of norm convergence, I finish by explaining why extremist violence does not falsify the framework set forth in Part I.

5

Mueller and Stewart (2012).

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The Sources of Islamic Law To understand the Islamic laws of war, they must be situated within the context of a broader understanding of Islamic law. Unlike modern international law, Islam makes no distinction between domestic law and the law of nations: In Islam, the law of war and the law of the state are constitutive of an overarching legal system. Islamic law is a single normative framework for the governance of the lives of the faithful, a law ordained by God for the happiness and benefit of humankind and for the promulgation of social and political justice. As many scholars have noted, Islam recognizes no distinction between religion and politics, or between “church and state” as those in the West would describe it. It is, in a sense, a total system of law, one that regulates personal behavior and political institutions.6 As with many religions, the historical context in which Islam arose played a key role in shaping the sources and content of Islamic law and jurisprudence. According to the traditional account, in AD 610, the Prophet Muhammad, who was at the time about 40 years old, began to receive a series of divine revelations from the Archangel Gabriel. These revelations, which the Prophet would receive off and on for the next two decades until his death in AD 632, were eventually compiled into a series of scriptural writings known as surahs. These surahs comprise the text of the Qur’an. Regardless of sectarian affiliation, all Muslim jurists and believers regard the Qur’an as the literal word of God as it was revealed to Muhammad. As the word of God, the Qur’an is taken as one of the primary sources of law in the Islamic faith, for both private behavior and social life, including politics and war. Unlike the Hebrew Bible, which provides a narrative of the early Jewish community, the Qur’an is not organized into a coherent narrative; it is rather organized into a series of interconnected verses. In fact, some scholars argue that the surahs were not written precisely as they are presented in the text that has been handed down to us. Instead, different portions of the text were revealed to Muhammad at different periods of his life, mainly in response to the circumstances that confronted the early Muslim community.7 As the literal word of God, the true meaning of the Qur’an is thought to far outstrip the finite cognitive abilities of even the most intelligent human beings, and so disagreements over how to interpret this sacred text have given rise to heated, and indeed often violent, debates.

6

Johnson (1997, 16).

7

Firestone (1999).

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Since the law of Islam is intimately connected to the early history of the Muslim community, the sources of Islamic law are similar in kind to the sources of social norms in pre-Islamic Arabia. Prior to the advent of Islam, there was no clear concept of universal law in the tribal societies that dominated the Arabian Peninsula. As I discuss in more detail in the following section, pre-Islamic Arabia was – with the exception of the southern regions (modern-day Yemen and Oman) – almost completely anarchic. The dry, desolate landscape placed a natural constraint on agricultural productivity, which in turn made the development of complex political structures and state bureaucracies almost impossible.8 Consequently, there were few centralized political structures prior to the economic developments in the western region that facilitated the emergence of the Islamic state. This meant that the people who lived in these regions likely did not think about issues of political justice in a way that transcended the boundaries of the local tribe. As the historian Fred Donner observes, “The absence of the state in North Arabia is visible not only in the absence of administrative classes, but also – perhaps most strikingly – in the absence of any overriding concept of law binding beyond, or even within, the limits of the tribe.”9 In the absence of a universal conception of justice, and in the absence of sovereign political structures that could enforce the law, social order was maintained through customary traditions known as the sunnah. Although there were no states to enforce them, leaders made “decisions on the basis of custom,” which were “enforced by tribal public opinion.”10 Although Islam revolutionized politics and law in Arabian society, it did continue with the convention of basing social norms and ethical codes on customary traditions. Yet, it added a twist: Instead of regarding all social customs as normative, Muslims gradually came to regard the sayings and practices of the Prophet himself as uniquely binding sources of law in their own right. Thus, in addition to the Qur’an the second major source of law in the Islamic community are “the deeds and practices” of the Prophet Muhammad,11 which are referred to as the sunna. When Muhammad died in AD 632, the sunna took on an added significance because it provided believers with additional insight into the meaning of the Qur’an, and therefore into the nature of appropriate social conduct.12 In Islamic theology, Muhammad is looked upon as the last in a venerable line of divinely anointed messengers who were sent to set humanity on to the path of God – a line of messengers that includes 8 11

9 10 Donner (1981). Donner (1981, 39). Khadduri (1955, 21). 12 Bassiouni (2014, 63). Firestone (1999, 93).

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Moses and Jesus Christ. As the chosen messenger of God’s final revelation to humanity, Muhammad is the central figure in Islam. This centrality is reflected in the fact that his sayings and practices are interpreted as sources of law. As Mahmoud Cherif Bassiouni points out, “The primary sources of the sharia are the Qur’an, the hadith, and the sunna …. The Qur’an and the sunna (containing the hadith) are the two most powerful binding ligaments of Islam. Both are linked to the Prophet, with all of the attending lore and legend surrounding him.”13 The “sayings of the Prophet that relate to Islam” are referred to as the hadith.14 For the first century after the death of the Prophet, reports on the hadith were passed on through an oral tradition, and in this way they were “preserved in the hearts and minds of Muhammad’s surviving contemporaries and their descendants and students.”15 Because these reports were often fabricated to support the parochial interests of particular groups, Muslim legal scholars eventually developed an elaborate system for distinguishing authentic reports from untrustworthy ones, and they meticulously set the former down in writing.16 The “clear injunctions of the Qur’an” and the sunna of the Prophet constitute what the historian Mohammad Kamali calls the “nucleus of the Shariah.”17 As John Kelsay explains, the term “al-sharia” “literally… means ‘the path.’ In a more extended sense, it refers to the path that ‘leads to refreshment.’”18 Accordingly, Muslim jurists believe that acting in accordance with the directives of God will lead to happiness in this life and in the life that follows. Because the Qur’an and the sunna do not address every issue that may arise in the life of the Muslim community, however, some scholars argue that independent legal reasoning should be regarded as a source of law. As Kamali explains, reasoning via “[a]nalogy and consensus have been generally recognized by the vast majority of ulama [i.e., Muslim scholars], but there is disagreement over the validity and scope of many of the rational proofs that originate in ijtihad [i.e., juristic reasoning].”19 Despite these more specific disagreements, all Muslims, including the four main schools of law in the Sunni tradition – i.e., the Hanafi, the Maliki, the Shafii, and the Hanbali, regard the Qur’an and the sunna as primary sources of Islamic law. Later on in this chapter, I discuss Islamic views on the ethics of war and peace, and most of my evidence is derived from the prescriptive statements in the Qur’an and reports on the sunna of the Prophet. Before analyzing the laws of war, however, I discuss the historical and cultural 13 16 19

Bassiouni (2014, 53). Bassiouni (2014, 56, 65). Kamali (1999, 118).

14

Bassiouni (2014, 64). 17 Kamali (1999, 108).

15

Firestone (1999, 94). Kelsay (2007, 44).

18

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factors that led to the emergence of Islam in seventh century Arabia and the Middle East. To evaluate my claims about the grammar of moral cognition and to compare it with competing views of norm emergence, I must show that functionalist, or structural-systemic, theories are insufficient to explain the rise of civilian immunity ideas in early Islamic society. The laws of war in Islam were certainly influenced by structural-systemic and cultural factors. However, I argue that these factors did not strictly determine their emergence.

Pre-Islamic Arabia and the Formation of the Islamic State In Chapter 3, our discussion of the ethics of war in early China led us to conclude that the formation of the territorial state was the main structural-systemic factor responsible for the emergence of humanitarian ideas regarding the use of military force. Though the rise of the Islamic state on the Arabian Peninsula and its expansion throughout much of the modern Middle East and North Africa is intimately related to the development of Islamic law, not to mention the Islamic laws of war, it is a mistake to view these norms as an outgrowth of structural factors. The Islamic laws of war were really an “Islamicized” version of pre-existing cultural norms,20 and so it is misleading to regard Islamic state formation as their structural cause. State structures and imperial law may have facilitated their articulation and development, but the process of state formation did not bring them about in the same way as it did in ancient China. Consequently, a functionalist account of the norms of war is not adequate. To explain why Muslim peoples adopted restrictions on the use of military force, therefore, additional considerations must be brought to bear. To better understand the social context that facilitated the evolution of Islamic law, in this section I discuss the historical and cultural background of the formation of the Islamic state on the Arabian Peninsula. The Prophet Muhammad was a member of the Quraysh, a tribe that dominated the central Western region of the Arabian Peninsula in the area that surrounded Mecca. Prior to the emergence of Islam, social life on the Arabian Peninsula varied largely by region. In southern Arabia, climatic conditions favored highly productive agricultural practices and intensive farming techniques, and as a result the consequent material prosperity aided the emergence of “an independent South Arabian 20

Donner (1991).

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civilization.”21 In this region, sedentary peoples with social structures that were very similar in kind to modern states and kingdoms dominated political life. In areas of the Arabian Peninsula that did not favor highly productive agricultural practices, i.e., central and northern Arabia, there were no centralized sovereign states. In these regions, the economy was far too “underdeveloped” to support the kinds of administrative and military organizations that are needed to support a functioning state. Thus, Islamic civilization arose in a highly fragmented geographic, economic, and political context. Political life in much of pre-Islamic Arabia was centered on tribal structures, and, as such, the definitive locus of individual and group identities was the tribe. Yet, life was far from uniform, and in particular there were three main kinds of tribal groups. Depending on the level of agricultural produce and the availability of water, some regions supported small oasis towns that were inhabited by more sedentary tribes. In many regions of the peninsula, however, nomadic tribes that survived on herding sheep, goats, and camels were dominant.22 Between these two extremes were tribes that Donner refers to as “semi-nomads who practiced both settled…agriculture and nomadic pastoralism in varying degrees depending upon the conditions under which they had to live.”23 Due to the subsistence level economy that prevailed in much of Arabia, the nomadic tribes often engaged in the practice of raiding, and, as a result, they often extolled martial virtues such as bravery and heroism. Like some of the more nomadic tribes that dominated the Southern Plains in early America, Bedouin tribesmen tended to denigrate the sedentary lifestyle.24 The nomadic tribes were by far the most powerful of all the tribes that lived on the Arabian Peninsula prior to the advent of Islam. Given their immense military power, these tribes often operated as protection rackets that sought payment for “services” rendered to the weaker tribes.25 Some historians even argue that the need to gain control over the nomadic tribes who lived on the fringes of Arabia was a major concern for the elites who dominated the nascent Islamic state, and that their desire to control these tribes led them to expand their operations further into modern-day Syria and Iraq.26 On the one hand, the power that these tribes wielded made them inherently difficult to control, and as a result the elites concluded that the state could not survive unless it could control them. On the other hand, subduing the nomads on the fringes of the growing Islamic state also brought the Muslims into greater contact with the Byzantine and 21 24 26

22 23 Donner (1981, 12). Donner (1981, 14–16). Donner (1981, 16). 25 See Gwynne (2010) and Firestone (1999). Firestone (1999, 30–34). Donner (1981, 267–271).

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Sasanian Empires. But when the Muslims eventually came into contact with these two settled empires, having greater control over nomadic tribes gave them access to militarily powerful groups that could aid in the further expansion of Islam.27 Although some Westerners portray Islam as a premodern religion, perpetually stuck in the past, from the perspective of a Western, modernist political ideology, Islam was actually something of a modernizing force on the Arabian Peninsula. This was so for two primary reasons. First, Islam presented early Arab peoples with a unifying political ideology that enabled them to create a consolidated state structure in a thoroughly anarchical environment. To be sure, the evidence seems to indicate that the central elements of the Islamic state did not take shape until around AD 685–705, but Muhammad and his successors do seem to have been intent upon consolidating and expanding their domain of political control to the entire peninsula and its surrounding regions, if not the entire known world at the time.28 Second, Islam also injected a universalistic conception of law and social identity into a tribalistic society that had been centered around ties of kinship loyalty. What does all this have to do with humanitarian protection norms? The early history of Islam suggests that although the rise of the Islamic state was important for the development of legal and social institutions in the early Middle East, it did not directly bring these norms into existence. In fact, evidence culled from extant Bedouin literature indicates that “attacking noncombatants with lethal intent, for example, was considered bad form and…generally avoided.”29 While it is not clear whether this nascent noncombatant immunity norm had the selfsame meaning that it later had for classical Islamic jurists, it created a bedrock of cultural knowledge from which the Islamic laws of war eventually emerged. At the very least, the evidence suggests that this unwritten normative code did not arise through the process of state formation as it did in the case of early China. Indeed, the rise of the Islamic state clearly postdated the emergence of the idea of civilian immunity, however, nascent this idea may have been. Since state formation was relevant for one case (ancient China), yet not for another (early Islam), a purely structural theory of civilian protection ideas is inadequate. But this does not mean that the rise of Islam was irrelevant for the development of the norms of warfare. Indeed, the development of Islam was important because it changed what people fought for. In the materially desolate terrain of the pre-Islamic Arabian Peninsula, the use of

27

Donner (1981, 89–90).

28

Donner (1986, 293).

29

Donner (1991, 34).

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violence was defined by highly materialist ends like gaining access to scarce resources or increasing the political influence of one’s tribe. Raiding was a fairly common, legitimate way of getting by in this difficult climate, and the only major normative restrictions on raiding were norms that prohibited attacks on one’s own tribal affiliates.30 The highly legalistic, unifying doctrine of Islam, however, changed all of this. At least on the official view, Islam led people to gradually abandon the idea that wars should be fought for materialistic ends like wealth, power, or territory in favor of the idea that they should be fought for religious or normative ends. Also, by promulgating a universal religious ideology that transcended ties of tribal identity, the Muslim faith made it possible for people to conceive of their social relationships in a way that could in principle be expanded to include the whole of humankind. To be sure, Islamic law and scholarship does posit a fundamental difference between believers and nonbelievers, but the social boundaries between believers and nonbelievers are not rigid barriers that can never be crossed. These boundaries are far more fluid than tribal identities. Finally, Islam ushered in the idea that individual behavior should not simply be judged by reference to the norms of one’s tribe, but rather that it should be judged by reference to an impartial system of laws backed up by divine authority.31 This last innovation is highly important for understanding the laws of war in early Islam because it implies that all social and political behavior, including the violence of war, should be judged by reference to universal standards of law. Thus, rather than creating laws of war from the ground up, the early Islamic state created a divinely inspired system of law that was built up from the ashes of earlier cultures that it had largely overtaken and superseded. With the advent of Islam in the early seventh century AD, the highly fragmented political system on the Arabian Peninsula underwent a dramatic transformation. As a result of the religious teachings of the Prophet Muhammad, not to mention his political and military acumen, the fragmented social structure of the pre-Islamic system in Arabia was gradually consolidated into a centralized system of governance. In the following section, I describe how Islamic jurists in this centralized system of governance approached the ethics of war and violence. Consistent with the overall argument of this book, I show that they created a system of legal principles that are strikingly similar to the Christian just war tradition in the West as well as modern international law.

30

Firestone (1999, 34–35).

31

Donner (1981, 57–60).

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The Ethics of War in Islamic Law As I demonstrate in Chapter 5, early Christian just war theorists believed that the use of violence must be restrained by reference to an overarching conception of justice and peace. The theory of the just war is usually broken up into two components:32 (1) the jus ad bellum (“right to war”) principles that regulate when political actors can go to war; and (2) the jus in bello (“justice in war”) principles that regulate the conduct of military commanders and soldiers. Using this same distinction between jus ad bellum and jus in bello principles, in this section I examine the ethics of war in early Islam. To interpret the laws of war in Islam, I use four sources: the Qur’an, the sayings and practices of the Prophet, the writings of eminent Islamic legal scholars, and secondary sources.

Jus ad Bellum Principles In medieval Islam, the political world was viewed as being comprised of two basic realms: the dar al-Islam (“the land of Islam”) and the dar al-harb (“the land of war”) – a distinction that is crucial for understanding the legal justifications for war.33 Reflecting the territorial domain of the Islamic community, the term dar al-Islam referred to any territory that was under the sovereignty of the Islamic legal system. It was made up of any community, whether Muslim or not, that accepted the authority of the Muslim caliph.34 The term dar al-harb, on the other hand, referred to any lands that were not under the sovereign authority of the caliph. Despite the apparent connotation of the term, these lands were not always in actual conflict with the dar al-Islam. As I mentioned earlier, at the time of its inception, Islam was similar to Christianity in the sense that it was intent upon realizing a divine mandate to bring peace and justice to the rest of humankind. To that extent, the “goal” of Islam was to ultimately subsume the dar al-harb into the dar al-Islam; the key mechanism for achieving this overarching objective was jihad.35 Although it is frequently identified with the concept of holy warfare, the term jihad actually connotes the idea of striving in the path of

32 33 34

In addition, some include jus post bellum (“justice after wars”) in the just war tradition. See Bass (2004). Johnson (1997); Khadduri (1966, 11); Hashmi (2006, 151). 35 Khadduri (1966, 11) and Hashmi (2006, 151). Khadduri (1966, 15-16).

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God,36 and as such it is more closely associated with the Western European notion of the just war, at least under the religious strand of the just war tradition. Yet, the notion of jihad does not simply connote war and violence, and indeed there are four basic ways to exercise this important duty: by the heart, by the tongue, by the hands, or by the sword. The use of military force is only one way to bring about the ultimate object of Islam, and it is not always the most favored mechanism.37 In fact, in a well-known hadith, the Prophet Muhammad is said to have claimed that the “exertion of force in battle is a minor jihad, whereas ‘self-exertion in peaceful and personal compliance with the dictates of Islam (constitutes) the major or superior jihad,’…the ‘best form of jihad is to speak the truth in the face of an oppressive rule.’”38 There has been much debate, in Islamic law scholarship and in the secondary literature, over whether the instigation of legitimate war must be defensive in nature or whether the use of offensive military force is legitimate. At the very least, the evidence clearly indicates that most Islamic jurists were in favor of allowing defensive military operations. Indeed, some passages of the Qur’an seem to suggest that the only legitimate form of violence is defensive in nature: And fight in the way of Allah with those who fight with you, and do not exceed the limits, surely Allah does not love those who exceed the limits. And kill them wherever you find them, and drive them out from whence they drove you out, and persecution is severer than slaughter, and do not fight with them at the Sacred Mosque until they fight you in it, but if they do fight you, then slay them; such is the recompense of the unbelievers. But if they desist, then surely Allah is forgiving, merciful. And fight with them until there is no persecution, and religion should be only for Allah, but if they desist then there should be no hostility except against the oppressors.39

Another passage makes a similar claim about defensive war: Permission (to fight) is given to those upon whom war is made because they are oppressed, and most surely Allah is well able to assist them.40

On the other hand, there are passages that appear to call for offensive military operations as well.41 This is particularly true for passages that discuss how Islam should treat unbelievers and apostates:

36 38 41

37 See Khadduri (1966) and Kelsay (2007). Khadduri (1966, 15). 39 40 Ali and Rehman (2005, 330). Qur’an 2:190–193. Qur’an 22:39. See Johnson (1997, 62).

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Fight those who do not believe in Allah, nor in the latter day, nor do they prohibit what Allah and His Apostle have prohibited, nor follow the religion of truth, out of those who have been given the Book, until they pay the tax in acknowledgement of superiority and they are in a state of subjection.42 O you who believe! Fight those of the unbelievers who are near to you and let them find in you hardness; and know that Allah is with those who guard (against evil).43

Regardless of which side one takes in this debate, the use of military force was not something that Islamic jurists took lightly, and indeed they believed that the use of military force had to somehow be tied to the divinely ordained purpose of correcting wrongdoing or expanding the domain of the Islamic state.44 Even on the more expansionist interpretations of Islam, the use of violence is always thought to be subservient to the purpose of “calling human beings to Islam.”45 Not only are Muslims permitted to use violence to defend the dar al-Islam when it is attacked, but, in addition, legitimate violence must in some sense be reciprocal or punitive: It is seen as a reaction to the wrongful actions of non-Muslims (in the case of unbelievers) or apostates (in the case of those who leave the faith). In the Western just war tradition, it is an accepted fact that only certain individuals or groups are permitted to make decisions to go to war, namely the leaders of a legitimate political community. As James Johnson points out, the reason for this is that it allows us to be confident that a particular war is morally justified. It assures us that “the warrants for war are sufficient and have been properly interpreted.”46 Something similar can be said about the Islamic theory of war. In Islam, the Prophet Muhammad was seen as a divinely guided politico-religious leader who possessed the authority to wage war for the sake of the community.47 When he died in AD 632, the leadership of the Islamic community devolved to the caliph. According to the Sunni tradition, the Prophet did not appoint a successor, and as a result his followers quickly selected Abu Bakr “as the first khalifa, [or] ‘deputy,’ of the Prophet.”48 Others rejected this claim, believing that Muhammad had selected a successor, namely his son-in-law, Ali. The followers of this latter view eventually broke off into a distinct sect known as Shi’ism. In both factions of Islam, however, the use of violence was to be undertaken by a legitimate authority, which was defined in terms of religious authority.49 42 44 46 49

43 Qur’an 9: 29. Qur’an 9: 123. Kelsay (2006, 88) and Hashmi (2002, 204–210). 47 Johnson (1997, 77). Johnson (1997, 93). Johnson (1997, 96).

45 48

Kelsay (2006, 88). Denny (1994, 83).

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Early Islamic jurists thought that the use of force had to be preceded by peaceful diplomacy and persuasion. Consequently, they believed that even legitimate authorities were legally required to invite non-Muslims to accept the truth of Islam before waging war. The Hanafi jurist Muhammad ibn al-Hasan al-Shaybani, who some European legal theorists have referred to as the Hugo Grotius of Islam for his work on the Islamic law of nations, makes the following point on this issue: If the army [of Islam] attacks the territory of war and it is a territory that has received an invitation to accept Islam, it is commendable if the army renews the invitation, but if it fails to do so it is not wrong.50

Likewise, the Muslim scholar Al-Mawardi claimed that it is wrong to launch attacks on people who have not yet received the call to Islam: We are forbidden to launch surprise attacks on such people and kill them or burn their property, for we may not initiate action against them before inviting them first to Islam, making the Prophet’s miracles known to them, and informing them of such arguments as would make them…respond favorably. Should they persist in their unbelief after such evidence is shown them he [i.e., a war commander] should fight them, for they are…from his standpoint in the same class as those who have received the call.51

Although waging war on people for rejecting a certain religious doctrine is very much at odds with current standards of international justice, passages like this show that, at the very least, early Muslim scholars felt that political violence is a necessary last resort for achieving an end that they regarded as otherwise legitimate, i.e., calling non-Muslims to the truth of Islam. Jus in Bello Principles Despite the fact that Islam is sometimes viewed as a violent religion that orders its followers to attack enemy noncombatants, Islamic law directly prohibits the intentional killing of civilians. In the Qur’an passage cited earlier, the faithful are commanded to “fight in the way of Allah with those who fight with you, and do not exceed the limits, surely Allah does not love those who exceed the limits.”52 According to the dominant interpretation of Islamic law, the reference to “exceeding the limits” in this verse refers to the limits imposed on individual behavior by the sayings and customs of the Prophet Muhammad.53 In a well-known hadith, it was reported that Muhammad disapproved of deliberate attacks 50 53

51 52 Khadduri (1966, 95). Al-Mawardi (1996, 40). Qur’an 2: 190. Hashmi (2002, 210), (2006, 156); Firestone (1999); Kelsay (2007, 107).

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on women and children.54 Indeed, at the beginning of his treatise on the Islamic law of nations, al-Shaybani makes reference to a famous saying of the Prophet: Whenever the Apostle of God [i.e., the Prophet Muhammad] sent forth an army or a detachment, he charged its commander to personally fear God, the Most High, and he enjoined Muslims who were with him to do good [i.e., to conduct themselves properly]. And the Apostle said: “Fight in the name of God and in the ‘path of God,’” [i.e., truth]. Combat [only] those who disbelieve in God. Do not cheat or commit treachery, nor should you mutilate anyone or kill children.55

This saying is often interpreted as enjoining Muslim fighters to act in accordance with a norm that forces them to distinguish between soldiers and civilians. In Islamic jurisprudence, intended attacks on women, children, the aged, and the infirm run directly counter to a Prophetic injunction, and thus are always unlawful. Abu Bakr, the first successor to Muhammad, made very similar claims before sending his troops off to battle: Do not act treacherously; do not act disloyally…Do not mutilate; do not kill little children or old men, or women; do not cut off the heads of palm-trees or burn them; do not cut down the fruit trees; do not slaughter a sheep or a cow or a camel, except for food. You will pass by people who devote their lives in cloisters; leave them and their devotions alone. You will come upon people who bring you platters in which are various sorts of food; if you eat any of it, mention the name of God over it.56

The general reason for distinguishing between men, women, children, and the elderly has to do with the fact that women, children, and old people did not usually take up arms in battle.57 When individuals in any of these categories did take up arms against Muslim fighters, they lost their status of immunity. As Al-Mawardi said, “Killing women and children is not permitted in war or otherwise so long as they do not fight owing to the Prophet’s injunction against killing them.”58 Although this point calls attention to an important similarity between medieval Islamic law and the modern laws of war, it should be kept in mind that the distinction between combatants and civilians in medieval Islam was not based on a clear notion of human rights as we currently understand them. After all, al-Shaybani believed that it is legally permissible for the

54 56 57 58

55 Khan (1983, 159). Khadduri (1966, 75–77). Quoted in Hashmi (2002, 211). See Kelsay (2007). For an alternative view, see Johnson (1997). Al-Mawardi (1996, 45).

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Imam to kill captive males, i.e., prisoners of war, in enemy territories if he, the Imam, “deems [it] to be advantageous to the Muslims.”59 That said, this interpretation of the law was not universal, and indeed Ibn Rushd notes that some Muslim jurists “maintained that it is not permitted to execute the prisoners.”60 However, Muslim jurists largely agreed with the idea that enemy captives can be enslaved. In any case, the principle of distinction was, and still is, based upon one’s ability to participate in armed conflict. As Ibn Tamiyyah argued, Since lawful warfare is essentially jihad and since its aim is that the religion is God’s entirely, according to all Muslims, those who stand in the way of this aim must be fought. As for those who cannot offer resistance or cannot fight, such as women, children, monks, old people, the blind, handicapped, and their likes, they shall not be killed unless they actually fight with words [e.g., by propaganda] and acts [e.g. by spying or otherwise assisting in the warfare]. Some [jurists] are of the opinion that all of them may be killed, on the mere ground that they are unbelievers, but they make an exception for women and children since they constitute the property for Muslims. However, the first opinion is the correct one, because we may only fight those who fight us when we want to make God’s religion victorious.61

These considerations show that Muslim legal scholars believed that killing enemy civilians, namely women, children, and the elderly, is morally impermissible, and in my view they show that something like principles R1–R3 from Table 2.1 in Chapter 2 did influence the development of the Islamic ethics of war. What about the principle of proportionality? Although Islamic jurisprudence requires that Muslim combatants adhere to a norm of civilian immunity, Muslim scholars did recognize that noncombatants are often killed in war and that specific principles must be identified that can allow military commanders to discern lawful from unlawful strategies and tactics. The evidence suggests that some Muslim legal scholars placed a higher moral valence on intentional harms as opposed to unintentional harms and that this influenced how they thought about the ethics of war. Al-Mawardi claimed that “there are three classes of homicide: intentional killing…, unintentional killing or manslaughter, and quasi-intentional killing.”62 Depending on the circumstances, retaliatory attacks are allowed in case of murder, but in the case of manslaughter the victim’s consociates are only entitled to “legal compensation rather than retaliation.”63 Because Al-Mawardi advocated a stricter punitive response to intentional killing (i.e., murder), this suggests that the mental element of intent is morally critical here. With respect to the norms of war, Islamic scholars generally 59 62

Khadduri (1966, 100). Al-Mawardi (1996, 251).

60

61 Ibn Rushd (2000, 456). Ibn Tamiyyah (1996, 49). Al-Mawardi (1996, 252).

63

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believed that intentional attacks on noncombatants are wrong. Attacks that incidentally lead to the deaths of noncombatants are permissible just in case they are “proportionate with the military objective.”64 In his Siyar, al-Shaybani, a disciple of the Hanafi school of Islamic jurisprudence, makes several statements indicating that the ideas of intentionality and proportionality played an important role in his interpretation of the ethics of war. In a passage that takes the form of a dialogue, al-Shaybani makes the following points: i asked: Do you think that the blind, the crippled, the helpless insane, if taken prisoners of war or captured by the warriors in a surprise attack, would be killed? h e replied: [No], they should not be killed. i asked: Would it be permissible to inundate a city in the territory of war with water, to burn it with fire, or to attack [its people] with mangonels even though there may be slaves, women, old men, and children in it? h e replied: Yes, I would approve of doing all of that to them. i asked: Would the same be true if those people have among them Muslim prisoners of war or Muslim merchants? h e replied: Yes, even if they had among them [Muslims], there would be no harm to do all of that to them. i asked: Why? h e replied: If the Muslims stopped attacking the inhabitants of the territory of war for any of the reasons that you have stated, they would be unable to go to war at all, for there is no city in the territory of war in which there is no one at all of these you have mentioned. i asked: If the Muslims besieged a city, and its people [in their defense] from behind the walls shielded themselves with Muslim children, would it be permissible for the Muslim warriors to attack them with arrows and mangonels? h e replied: Yes, but the warriors should aim at the inhabitants of the territory of war and not the Muslim children. i asked: Would it be permissible for the Muslims to attack them with swords and lances if the children were not intentionally aimed at? h e replied: Yes. i asked: If the Muslim [warriors] attack [a place] with mangonels and arrows, flood it with water, and burn it with fire, thereby killing Muslim children or men, or enemy women, old men, blind, crippled, or lunatic persons, would the [Muslim warriors] be liable for the diya (blood money) or the kaffara (expiation or atonement)? h e replied: They would be liable for neither the diya nor for the kaffara.65

This passage suggests that al-Shaybani did permit military attacks that could lead to civilian deaths (Muslim or non-Muslim). However, as John

64

Kelsay (2007, 108).

65

Khadduri (1966, 101–102).

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Kelsay points out, we should not “read” this “passage” “as negating respect for the immunity of noncombatants.”66 Indeed, al-Shaybani explicitly argues that civilian casualties are allowable only if they are not intended. Otherwise, the presence of a single civilian could prevent the Muslim army from undertaking what is presumed to be a just war. Al-Mawardi defends a similar claim: If enemy troops shield themselves behind their women and children as they are getting killed, killing the women and children should be avoided, unless killing them is not possible without killing the women and children. If, on the other hand, they shield themselves with Muslim captives, and they could not be killed without killing the captives, they should not be killed. If leaving them alone leads to their surrounding the Muslims, the latter should try their best to get rid of them, taking care not to kill intentionally a Muslim who is in their hands. If such a Muslim gets killed, his killer has to pay blood-money and make expiatory amends if he knew of his being a Muslim, and the expiation alone if he did not.67

In this passage, the idea of proportionality is implicit. In a war that is otherwise morally justified, military commanders are required to refrain from attacks that threaten innocent human lives unless it is not possible to do so. The moral good of winning the battle is to be weighed against the moral bad of killing innocent women and children. If it is simply not possible to win a war without killing innocent women and children, a Muslim commander is permitted to use strategies and tactics that (unintentionally) lead to their deaths. Interestingly, in a statement that shows how group identity is important for the development of civilian protection norms, if a Muslim civilian is knowingly killed in an attack, a commander is required to pay blood-money and to make expiatory amends.

Why Prevent Attacks on Civilians? The evidence adduced thus far shows that early Muslim legal scholars believed that the use of violence must be constrained by humanitarian protection norms such as that of civilian immunity. In this section, I argue that my theory of moral cognition and emotions helps explain the emergence and stability of civilian protection norms in Islamic jurisprudence. However, since it is not possible to go back in time to conduct psychological experiments, how do I provide evidence for my argument? Discursive evidence from sacred texts and philosophical treatises can tell us whether Muslim jurists endorsed certain moral or social norms, but 66

Kelsay (2006, 93).

67

Al-Mawardi (1996, 45).

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they cannot tell us why they endorsed them. This issue is intrinsically difficult to resolve, and I can only hope to scratch the surface of a plausible response. The most tractable way around a problem like this is to see how far existing theories of norms can take us, and to examine whether my claim about universal psychological structures can help fill in the gaps in accounting for the emergence, the content, and the stability of civilian protection norms in Islam. As I explained earlier, my claim is not that constructivist or rationalist theories are wrong so much as limited in their ability to account for the evolution of international humanitarian norms. Since I have already looked at functionalist theories in the previous section, here I focus on rationalism and constructivism. On initial consideration, a constructivist or rationalist explanation of civilian protection norms in early Islam seems plausible. After all, the norm of civilian immunity was based on preexisting cultural values that generated convergent expectations about appropriate behavior in warfare. Whereas a constructivist would emphasize the fact that the civilian immunity norm was based on a preexisting social convention that was culturally transmitted through teaching or imitation,68 a rationalist would see it as a focal point that enabled individuals to reach a mutually beneficial outcome.69 However, in this section I argue that these theories do not fully explain why civilian immunity norms arose and remained durable in early Islam. I establish two points. First, I argue that my account of moral cognition and emotions helps explain why civilian protection norms have remained stable in Islam. Second, I show that the content of Islamic civilian protection norms have characteristics that conflict with constructivist and rationalist theories of social norms. Explaining Convergence and Stability: Rationalism, Constructivism, and Innate Moral Intuitions How can we explain why early Muslims outlawed direct attacks on civilians? The best way to answer this question is to set up a test between different theories of social norms, namely rational choice institutionalism, constructivism, and my naturalistic theory of moral cognition and emotion. If political actors create humanitarian protection norms on the basis of expected-utility calculations, as rationalism suggests, then we should expect to observe two kinds of confirming evidence. First, political actors should either create civilian protection rules out of a concern 68 69

Richerson and Boyd (2005); Wendt (1999); Florini (1996). Schelling (1960) and Morrow (2007).

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for their own civilians (a reciprocal enforcement logic), or they should create them out of a concern for developing a more stable empire (a winning of hearts and minds logic). In other words, the laws of war should operate as coordinating mechanisms that facilitate reciprocity or as norms of strategic restraint that enable emerging empires to expand. They should have little intrinsic normative pull on their own. Second, the textual evidence should show that decision-makers articulated these norms through cost-benefit calculations.70 However, if constructivism is correct, then decision-makers should articulate norms of civilian immunity because they see them as normatively binding, not as a useful way to promote their own interests.71 My theory offers an altogether unique set of observable implications. Similar to constructivism, if civilian protection norms arise out of emotional moral intuitions, the evidence should show that they are not mere coordinating mechanisms. Muslim theorists should speak and write about these norms as inherently obligatory regardless of whether other people adhere to them. In contrast to constructivism, my account holds that the affect-backed quality of civilian protection rules gives them an added source of stability that can help explain how they have survived through major social transformations and why they have cropped up again and again across time. With respect to the laws of war, rationalists would argue that the Prophet and his immediate successors, along with most of their followers throughout the history of Islamic civilization, chose to legally restrain the use of violence against civilians to help achieve their material interests. Since the Prophet and his successors had an interest in making sure that their own civilians would not be needlessly killed or mutilated, they had self-interested reasons to hold their own soldiers to a similar standard in their wars with opposing states and empires. This is the logic of reciprocal enforcement. Although rationalism provides us with a parsimonious way to explain why political leaders and their subordinates might choose to promulgate rules that forbid armed attacks against civilians, it does not explain certain features of the Islamic laws of war. Not only does the existing discursive evidence show that the Prophet Muhammad and his early followers were primarily concerned about divine justice rather than pure self-interest, but in addition the specific circumstances that gave rise to the Islamic laws of war do not match the causal mechanisms that rationalism identifies. Crucially, rationalism presumes that the laws of war are coordinating mechanisms, and this means that people only see reasons to

70

Hurd (1999, 396).

71

Hurd (1999).

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follow them if others do so as well. Rational choice theory views norms as social conventions, or relatively arbitrary rules that people create to overcome collective action problems. Unfortunately for rationalism, moral norms such as the civilian immunity principle are often seen as inherently normative: People have reasons to follow them regardless of what others do. To reveal the limitations of rationalism and to show how it can benefit from my naturalistic account of moral norms, here I consider the early evolution of the laws of war in Islam in the seventh century AD. As a number of scholars have pointed out, and as I have discussed earlier, the Qur’an contains seemingly contradictory passages on the ethics of war and peace. In some verses, it enjoins Muslims to be patient in the face of persecution or oppression and to engage only in acts of nonviolent resistance, or what might now be called “civil disobedience.” Other verses, however, seem to suggest unlimited warfare against unbelievers, even in situations where unbelievers do not seem to be guilty of presenting a direct and immediate threat to the interests or lives of Muslims. Since the Qur’an is viewed as the literal word of God, and since God is eminently rational and knowledgeable, it is taken for granted that it cannot possibly contradict itself. Therefore, throughout the history of Islamic civilization, Islamic scholars and theologians have attempted to interpret the Qur’an in ways that minimize these apparent contradictions. According to one theory, Muhammad received these verses at different times in the early history of the Muslim community, and they were more or less pacifistic (or militant) depending on the concrete social conditions facing the Muslims. In the early stages, when the community had very little power, Muhammad received those verses that required patience in the face of oppression and adversity. In the later stages, as Muslim power began to grow, the verses became more militant. As a result, some Muslim scholars hold that the later verses reveal legal prescriptions that are more enduring and eternal, and therefore that these verses abrogate the earlier, more peaceful strains.72 Yet, the growing power of the Muslim community should have led them to become more lax about the treatment of enemy noncombatants and it should have led them to become more militant or to disregard the earlier prescriptions on killing civilians. If actors create norms to suit their strategic preferences, and if they only do so out of a concern for reciprocity and a concern that others might attack their own civilian population, then a drastic increase in the power of the Muslim community should have led them to overlook

72

Firestone (1999) and Bonner (2006).

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such concerns. If they have the power to disregard constraints on how civilians should be treated, then we should expect them to disregard them. However, the passages in the Qur’an on exceeding the limits are still interpreted as enjoining some level of respect for noncombatants. As Reuven Firestone points out, most interpreters regard this verse, i.e., Qur’an 2:190, as “a warning to refrain from exceeding the prohibition against fighting noncombatants,” and many scholars believe that this normative prohibition remains “in force.”73 To understand this point, the Qur’an and the sunna need to be placed in the proper historical context. According to the traditional narrative, Muhammad began receiving revelations from God in about AD 610 while he was still living in Mecca. At the time, Mecca was under the control of the Quraysh, the tribe of which the Prophet was a member. The dominant religious ideology of the time was polytheism. As such, the religious doctrines that Muhammad preached were anathema to the religious views of the Quraysh, and as a result Muhammad and his followers were subjected to intense persecution.74 To escape oppression, in some cases Muslims fled to areas of North Africa. Despite this intense persecution, Muhammad initially required his followers to refrain from using violence and to endure the hardships with patience. He only allowed them to engage in acts of civil disobedience with the reigning authorities. According to the “evolutionary view” of jihad,75 the reason why he did not allow acts of violence against the authorities was because of the relative weakness of the Muslim community. Any attacks on the Quraysh in response to persecution, it was feared, could ignite even more persecution against the fledgling community. Because Muhammad seems to have based his views about the legitimacy of using violence on the basis of a cost-benefit calculation regarding the likelihood of successfully defending themselves against the Quraysh, this approach to the legitimacy of violence seems entirely explicable from a rational choice perspective. However, in AD 622, Muhammad and a group of followers made the famous move to Medina known as the hijra. The hijra is important for a number of reasons, and it remains a highly significant event in Muslim historiography. For our purposes, the hijra was important because it provoked a decisive break with the past and it altered the way that the Muslim community thought about the ethics of war and peace. The hijra signaled the end of the more pacifistic strain of Muslim thinking on war 73 74 75

Firestone (1999, 56 and 158, endnote 22). Bonner (2006); Firestone (1999); Donner (1981). For a critical discussion of this theory, see Firestone (1999).

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and peace, and it also facilitated the development of a much more militant approach to politics and religion. The people of Medina had accepted the Prophet Muhammad into their city to help manage a feud that had arisen between rival clans. As a result, the hijra effectively increased the power and influence of the Muslim community. This increase in power meant that Muhammad and his followers could afford to take a more militant approach toward their enemies in Mecca, and as such some scholars believe that during the early years of residing in Medina, Muhammad began receiving the Qur’an verses that permit the use of violence in self-defense. As the Muslim community began to increase in power, and as Muslims began to define themselves in response to their conflict with the Quraysh, Muhammad received the verses that enjoin jihad against pagans and unbelievers. With respect to the norms of war, the hijra signaled a decisive break with the past, at least to some extent. Some pre-Islamic norms of war were eventually relaxed, yet others were not. Prior to the advent of Islam, warring tribes on the Arabian Peninsula were only permitted to fight during certain times of the year, and some months were entirely off-limits for fighting. The reason for this restriction was to help maintain and to facilitate better trade relations: It was during these so-called sacred months of the year that people took part in an annual migration to Mecca. Also, as I noted earlier, pre-Islamic tribes generally frowned on attacking women and children in raids and attacks. However, after the hijra, the restrictions on fighting during certain months of the year were relaxed to allow for self-defense, but the restrictions on attacking enemy women and children were not. The change in norms was precipitated by the following incident. After the move to Medina, a group of Muslims were sent out on a reconnaissance mission to gain information about the location of a traveling caravan during the sacred month of Rajab.76 While on this expedition, the group raided a Meccan caravan, and in the process one man was killed and two were taken as prisoners, which directly violated Muhammad’s instructions not to attack anyone.77 In response to this incident, the Quraysh castigated Muhammad and his followers for violating the restrictions on fighting during the forbidden months.78 It was during this incident that the following verse was revealed: They ask of you concerning the sacred month about fighting in it. Say: fighting is a grave matter, and hindering (men) from Allah’s way and denying Him, and (hindering men from) the Sacred Mosque and turning its people out of it, are still

76

Hashmi (2002, 203).

77

Hashmi (2002).

78

Firestone (1999, 131).

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graver with Allah, and persecution is even graver than slaughter; and they will not cease fighting with you until they turn you back from your religion, if they can; and whoever of you turns back from his religion, then he dies while an unbeliever – these it is whose works shall go for nothing in this world and the hereafter, and they are the inmates of the fire; therein shall they abide.79

This passage holds that even though fighting during the sacred months is regrettable and should be avoided if at all possible, it is justifiable when done in response to aggression or persecution. Recall that the Muslims fled Mecca to avoid religious persecution and oppression from the ruling elites, so in their minds any attacks on the Quraysh were defensive or punitive in nature rather than purely offensive. Interestingly enough, however, this passage diverges from the “absolute prohibition” on fighting during the sacred months, and so to that extent it was an innovation over existing norms.80 But even though the Muslims began to take a more militant stance in their relationship with the Quraysh, Muhammad still did not abandon the idea that certain categories of people should not be intentionally killed in war, namely women, children, the aged, and the infirmed. Indeed, although some scholars accept the idea that the more militant verses of the Qur’an abrogate the more pacific ones, most of them hold that the earlier norms on attacking women and children are still in force.81 Islamic norms on killing women and children are difficult to square with the rational choice view of the laws of armed conflict. First, when Muhammad and his followers promulgated the rules of war, they did not make them in tandem with their rivals in Mecca or any other area. Rather, they seem to have based them in part on preexisting cultural rules, particularly those that outlawed war during the sacred months and those that outlawed attacks on women and children. As such, one might 79 80

81

Qur’an 2:217. Firestone (1999, 132). As Firestone points out, in pre-Islamic Arabia, Arab peoples “strictly observed the prohibition against both initiating conflicts and exacting revenge during these sacred months,” (38, emphasis added). My claim is not that this prohibition vanished altogether, but rather that it changed in content from the norms that prevailed in pre-Islamic Arabia. Islam still holds these months sacred, and as such it frowns on initiating conflicts therein. However, it relaxed the more absolute prohibition by allowing for self-defense. Firestone (1999, 158, endnote 22). Of course, verses such as Qur’an 9:5 require Muslims “to slay … idolaters wherever you find them.” As such, this verse is often referenced to support the claim that Islam requires the killing of civilians. However, as Sohail Hashmi argues, Qur’an 9:5 does not call for unrestricted war against idolaters or other unbelievers, but rather it calls for direct attacks on the “intransigent and rebellious Arab Bedouin tribes who are clearly the focus of the series of verses leading up to” Qur’an 9:5 (Hashmi 2003, 92–93).

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argue that they were cultural norms that operated as coordinating mechanisms for generating convergent expectations of appropriate wartime conduct. However, as I argued earlier, the Muslims were amenable to adjusting some pre-Islamic norms, e.g., permitting self-defense during the sacred months, but they did not alter or abandon norms that prohibited direct attacks on women and children. If we regard the norms of warfare as coordinating devices that help actors overcome collective action problems, or if we view them as cultural ideas that people simply internalize from their cultural environment, it is difficult to explain why Muslims have continued to accept the norm that it is impermissible to intentionally kill innocent civilians, despite major cultural changes over time. If we accept the traditional account that the Muslim community became more militant as their relative power increased, one might wonder why they did not decide to ignore the traditional norms that prohibited the killing of innocent women and children and that required Muslim soldiers to refrain from mutilating enemy combatants. The idea that the laws of war are designed to facilitate reciprocity fails to explain why early Muslims did not abandon these norms as soon as their power increased. As some IR scholars have pointed out, political actors often have good strategic reasons to directly attack civilians in war, especially in situations where they are intent on conquering new territories.82 Indeed, the empirical evidence suggests that Muhammad and his followers were quite intent on expanding their range of operations into the surrounding areas,83 and so they would have faced powerful incentives to advocate deliberate attacks on civilians. Furthermore, since mutilating dead bodies can potentially serve as warning to those who might resist such conquests, it is difficult to understand why early Muslims would have forbidden such practices if we take a rational choice perspective. If desecrating the bodies of dead enemies was seen as a way of dishonoring them, then this kind of practice could easily have served the strategic objective of undermining enemy resolve, as well as credibly signaling one’s own. As the recent IR literature on norm transgressions suggests, directly violating widely-accepted social or moral norms can serve important strategic functions.84 Indeed, the beheading videos posted online by ISIS illustrate in gruesome detail what Simone Friis refers to as the “symbolic-expressive power” of ISIS’s “carefully choreographed public displays of violence.”85 In her view, the power of such public displays consists in the fact that they transgress widely accepted “cultural 82 85

Downes (2008). Friis (2018, 244).

83

Donner (1981).

84

Evers (2017) and D’Ambruoso (2015).

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sensibilities and prevailing discourses on law and morality.”86 The fact that early Muslims forbid such practices suggests that they were not based on strategic cost-benefit calculations. A far more compelling explanation is that these norms are based on emotional reaction patterns such as moral disgust and repugnance toward desecrating the body. Also, if the laws of war are based on the logic of reciprocal enforcement, then the Muslims would have eventually abandoned the idea that killing women and children is a grave moral crime. As their political power began to grow, their opponents would not have had the military capabilities to enforce the civilian immunity norm. Reciprocity only works if the other actor has the capability to respond to infractions, which in this case means that it will only work if the enemy has the ability to target Muslim civilians. Yet, the Muslims never abandoned the idea that targeting enemy women and children is a serious moral crime. Perhaps one might argue that the Muslims did not need to kill enemy women, children, the old, or the sick because these kinds of individuals do not present a significant threat to invading forces. Indeed, the law did seem to allow women and children to be taken as war booty and enslaved, so one might argue that they decided to keep them alive so that they could be used by the Muslim forces.87 Also, the law did seem to allow for discretion with respect to killing male inhabitants who were not active fighters, and so one might wonder whether it was concerned about noncombatants per se, or whether it was mainly focused on killing enemies and gaining access to potential laborers. This interpretation seems intuitively plausible, but unfortunately it does not explain why early Muslims would have outlawed the intentional killing of old and sick individuals. If they were merely concerned to kill off potential opponents (presuming of course that unarmed women are not potential threats, which they might be) and to gain access to slaves, then there is no clear reason why they would have prohibited the killing of elderly and sick people. From the perspective of an invading force, the aged and the infirmed have little value as potential slaves, and because soldiers did not have to preserve their ammunition (they did not have guns), military commanders had no reason to believe that killing the aged or the infirmed would have been a waste of resources. Moreover, there seems to be no logical reason why Muslims would have explicitly outlawed attacks on the aged or the infirmed, unless of course if we assume that they regarded it as inherently wrong to directly attack the vulnerable and the innocent. Rational military commanders and their soldiers should

86

Friis (2018, 256).

87

Johnson (1997).

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simply refrain from killing them on their own accord, for these kinds of individuals present no clear threat to invading soldiers. Perhaps one might argue that Muslims decided to outlaw attacks on civilians because they believed that this would be a counterproductive way of establishing a universal empire for all of humankind. As Eric Posner points out, “Armies often spare noncombatants because they pose no immediate threat, they can provide supplies, information, and other services, and armies do not wish to give other civilians a reason for resistance … Patterns of behavior that seem humane are not necessarily signs of humanity.”88 This is a winning of hearts and minds logic: Muslim rulers may have concluded that killing large numbers of civilians would be a bad way to build and govern an empire. Indeed, in matters such as tax and colonial migration policy, there is evidence that Muslim rulers were concerned about pacifying the civilian population in occupied territories. For example, when they invaded Iraq, they specifically decided against dispossessing Iraqi peasants and replacing them with their own people. They did this because they wanted to keep the Iraqi peasants alive and because they wanted to increase the tax revenue of the state.89 Also, they implemented tax policies that were specifically designed to be fairly undemanding, and they did this to stave off resistance.90 But with respect to the norms of armed violence, there is no clear evidence to suggest that such an argument is right. However, most of the evidence supports the idea that early Muslims and their later followers endorsed civilian protection norms, at least for specific classes of particularly vulnerable people, because they regarded them as inherently normative. Although there is certainly an instrumental logic to allowing Muslim armies to take civilians captive, the reason for prohibiting deliberate attacks on women, children, and other protected classes is that they did not normally take part in fighting, and as a result “they [were] presumed not to be a danger.”91 That said, Muslim leaders were granted more discretion over the lives of fighting-age males. Indeed, despite the emphasis the Qur’an places on “the benevolent treatment of prisoners of war,” classical Muslim jurists allowed the leader to decide on issues of pardon, slavery, or the execution of male prisoners.92 As Khaled Abou El Fadl observes, they did this to balance the moral imperatives against existing political and military realities: Leaders were “granted discretion over the execution of male prisoners of a fighting age because of the risk that such males pose. Arguably, people who are capable of fighting pose a 88 91

89 90 Posner (2003, 309). Donner (1981, 240). Donner (1986). 92 Abou El Fadl (2017, 24). Abou El Fadl (2017, 22–23) and Qur’an 8:70.

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continuing threat to Muslims, and the ruler is entrusted to evaluate that risk and act on it.”93 Though modern IHL allows for no such discretion, the similarity consists in the fact that Islamic law grants protections to women, children, the aged, and the infirmed because they pose no inherent threat to Muslim soldiers. Historical contingencies, such as the fact that the women in subject territories did not fight and that most fighting-age males had to be ready to defend their people against invasions, clearly influenced the way in which norms against targeting civilians were interpreted and applied. One plausible reason why Muhammad and his followers promulgated norms against killing women and children is because of a potent cognitive-emotional disposition against killing intentionally. Indeed, the evidence from the hadith suggests that Muhammad directly outlawed the intentional killing of women and children, but that he allowed for incidental civilian fatalities. Furthermore, the evidence suggests that Muhammad outlawed the killing of innocent people because of an experience he had during a raid in which an innocent woman was killed, an example that shows that direct experience with the effects of war shapes the content of the laws of war, possibly through empathic concern.94 Although the evidence that can be gleaned from the historical record of ancient civilizations is never ideal, the review of Islamic law set forth in this section supports my argument in four basic ways. First, the evidence shows that despite the vast differences between early Islamic civilization, ancient China, and the modern West, early Islamic jurists held that certain classes of people should not be killed in war. Second, Islamic jurists provided distinctively moral reasons for avoiding direct attacks on women, children, the aged, and the infirmed, and these moral reasons were grounded in threat perception, i.e., that civilians should not be killed because they pose no threat. Third, although empathic concern played a less significant role in this case than in the ancient Chinese and Western cases – most later jurists merely cite the fact that Muhammad proscribed direct attacks on civilians to justify this particular rule, and so the degree to which they themselves may have felt sympathetic is not entirely clear – it may have been part of the reason for why Muhammad himself forbid such tactics. However, this is consistent with my argument because even though empathic concern plays an important role in moral cognition, people can apply moral principles dispassionately in specific situations. Finally, existing theories of international norms, namely rationalism and constructivism, do not fully explain how the laws of 93 94

Abou El Fadl (2017, 22). Also, see Abou El Fadl (1999, 153). Khan (1983, 159–160).

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war arose in early Islam, nor do they account for their content. Strategic and cultural factors clearly play an important role in how the Islamic laws of war emerged, but they can only take us part of the way. They do not explain, for example, why threat perception is regarded as morally significant in the first place, nor do they explain why these jus in bello norms have persisted despite major changes in the strategic and cultural environment of Islamic society. By integrating strategic and cultural explanations with the psychological account set forth in Part I, IR scholars will be able to better explain why these norms have persisted across Islamic history. The Moral Psychology of Extremism Thus far my analysis has shown that the roots of civilian immunity in Islam run quite deep. Not only do the Qur’an and the hadith prohibit deliberate attacks on vulnerable populations in war, but so too legal opinions and commentaries on the Islamic laws of war show that it does not permit the deliberate targeting of civilians, especially women and children. However, over the last several decades, a more militant strain of Islam has emerged and spread, motivating not only the September 11th attacks that sparked the US invasion of Afghanistan, but sewing discord, dissension, and strife across the Muslim world and into neighboring regions. Although Muslim extremist groups such as al-Qaeda, ISIS, and the Taliban do target military personnel, their most devastating, and arguably their most effective,95 attacks are specifically designed to kill or harm civilians, both Muslim and non-Muslim. If Islamic law prohibits coordinated attacks on civilians, then how can we make sense of extremist violence? Since my theory holds that civilian protection ideas are grounded in broadly universal moral beliefs and sentiments, is it consistent with extremist violence, and if so, how?96 Building on the voluminous literature on radicalization and terrorism, in this section I argue that extremist violence does not falsify the theoretical framework of Chapter 2. Moreover, although the moral psychology of extremist violence is an issue that deserves a book-length treatment on its own, and thus I cannot do it justice here, the theoretical framework set forth in Chapter 2 can help scholars identify the psychological factors that inhibit recognition of the rights of innocent people. As per my argument of the preceding section, Islamic law forbids intentional targeting of civilians. To that extent, Islamist extremists are simply misguided. That said, the 95 96

For alternative views on this, see Pape (2006) and Abrahms (2006). I am indebted to one of the anonymous reviewers for raising these questions.

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theory does identify factors that may be operative in motivating individuals to think that it is morally justifiable to kill civilians, particularly ingroup/out-group dynamics, a lack of empathy, and dehumanized perception. In this section, I briefly examine the moral motivations for extremist violence,97 and I analyze how they square with the theory of moral cognition and emotions set forth in Part I of this book. Since 9/11, academic research on terrorism has proliferated rapidly and at a high volume, so there is simply too much literature to review in the space that I have available.98 Therefore, instead of providing a systematic review of the literature on radicalization and Islamist extremism, I focus on the core factors that most experts agree are key motivations for terrorist violence. I then explain how extremist violence fits with the broader theory of moral psychology that I defend in this book. The willingness to support terrorist attacks is driven by three key moral motivations: (1) an intense desire for moral and in-group purity; (2) a heightened sense of in-group/out-group differences; and (3) a desire to exact revenge for current or past injustices. Although it is very difficult to “get inside” the minds of terrorists, factors (1)–(3) are routinely cited in the psychological literature on terrorism, and they help make sense of the kinds of arguments that violent extremists give for killing civilians. For example, each of these concerns was reflected in the fatwa that Osama bin Laden issued in 1998: The ruling to kill the Americans and their allies … is an individual duty for every Muslim who can do it in any country in which it is possible to do it, in order to liberate the al-Aqsa Mosque and the holy mosque [Mecca] from their grip, and in order for their armies to move out of all the lands of Islam, defeated and unable to threaten any Muslim. This is in accordance with the words of Almighty Allah, “and fight the pagans all together as they fight you all together,” and “fight them until there is no more tumult or oppression…”99

The desire to cleanse Muslim lands of foreign soldiers clearly reflects a concern for in-group purity as well as a heightened sense of in-group/outgroup differences. What is more, bin Laden routinely argued that Muslims are permitted to target noncombatants “as an act of reciprocity” for the killing of Muslim civilians, an argument that reflects the idea of revenge for past injustices.100 Regardless of whether his arguments were

97

98 99

By “moral motivations,” I mean subjective beliefs and motivations about the moral legitimacy of extremist violence. I make no claim that these motivations are in any way morally justifiable. For useful reviews of the literature, see Hoffman (2006); Pape (2006); Bloom (2004); Sageman (2008); Moghadam (2009); Victoroff (2005). 100 Quoted in Achtar (2010, 29). Achtar (2010, 31).

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correct, the perception that the United States had deliberately killed Muslim civilians clearly played into his motivations, or at the very least his rhetoric. In this section, I explore how these motivations can corrode respect for the principle of civilian immunity. Moralistic Disgust and the Desire for In-Group Purity As I discussed in Chapter 2, the desire for moral and spiritual purity plays an important role in human psychology. Moral judgments tend to focus on human affairs, but they often have a strong connection to beliefs about the supernatural. Indeed, the natural law tradition in just war philosophy was historically predicated on the notion that God created the universe as well as the principles of natural law. As Cicero once put it, natural law is “right reason in harmony with nature. It is spread through the whole human community, unchanging and eternal, calling people to their duty by its commands and deterring them from wrong-doing.”101 For St. Thomas Aquinas, natural law is that part of the eternal law of God in which rational creatures participate.102 Moral foundations theorists argue that even though moral systems tend to focus on altruism, justice, and harm, people moralize about a wide variety of issues that have very little to do with these concerns, including eating habits, personal cleanliness, and sexual behaviors and proclivities. Although the desire for purity is usually benign, it also has a dark side. In particular, when the desire for purity is combined with a tendency to draw rigid in-group/out-group boundaries, the desire for purity can lead people to systematically disregard the rights of others. As Diego Gambetta and Steffen Hertog observe, the desire for purity often motivates right-wing terrorism. Right-wing terrorists have a very intense “desire to keep their social environment pure and [to] reject intrusion by alien forces perceived as corrupting.”103 In their view, this ideological proclivity is linked to a more “fundamental trait” that underlies conservatism: the “proneness to be easily disgusted.”104 The desire to purify society of “alien forces” leads right-wing terrorist organizations such as the Ku Klux Klan to justify the use of violence against racial minorities. Research in neuroscience and moral psychology helps explain how the desire for purity can motivate extremist violence. Neuroscientist Susan Fiske and her colleagues have shown that when people feel a sense of disgust toward stigmatized out-groups, they are less likely to attribute mental states to the members of these groups. As they put it, people 101 103

102 Cicero (2008, 68). Aquinas (2002, 18). 104 Gambetta and Hertog (2016, 130). Gambetta and Hertog (2016, 130).

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“spontaneously think about the minds of dehumanized targets less often than the minds of other social targets.”105 In other words, disgust can inhibit the kind of perspective-taking that is necessary for empathic concern, which can in turn lead to dehumanization. Furthermore, the work of Scott Atran and his colleagues shows how sacred values can motivate terrorist violence, including Islamist extremism. Atran and Ginges (2015) argue that when it comes to sacred values, people do not think or act like rational cost-benefit calculators. Instead, they tend to treat sacred values as “incompatible or nonfungible with profane or economic goods, as when land becomes ‘sacred land.’”106 Because sacred values operate on a different plane than mundane values, they encourage people to take on high costs and personal sacrifices to protect them, even if it includes “being willing to kill and die” for the values in question.107 Atran and Ginges argue that when individual identities “become fused with” collective identities, people are even more “willing to engage in extreme pro-group behavior when the group is threatened.”108 When concerns for purity are mixed with in-group/outgroup relations, this amplifies the process of dehumanization and it encourages people to justify the use of extreme violence,109 including the killing of civilians. The desire for purity is a core concern for Islamist extremists. As Gambetta and Hertog point out, this concern is particularly stark for those who subscribe to a Salafi jihadist ideology.110 Salafi jihadists advocate the use of violence to uphold an extreme interpretation of Islamic law. According to the political scientist Assaf Moghadam, Salafi jihadism is a “radical offshoot movement with roots in a broader Islamist trend known as Salafism.”111 For Salafis, “all man-made laws must be rejected because they interfere with the word and will of God. Salafis reject the division of religion and state and believe that only the salaf – the Prophet himself and his companions” followed “God’s will.”112 Stemming from the work of the Muslim theologian Ibn Taymiyya, Salafis adopt an approach to legal analysis that favors “almost exclusive literal exegesis.”113 Moghadam argues that there are two main types of Salafism. While most Salafis “believe that God’s word should be spread by dawa alone – the nonviolent call to Islam by proselytizing,”114 Salafi jihadists believe in trying to recreate the early Islamic state through the 105 106 107 109 111 114

Harris and Fiske (2011, 180). Atran and Ginges (2015, 69). Also, see Ginges et al. (2007). 108 Atran and Ginges (2015, 69). Atran and Ginges (2015, 76). 110 Graham and Haidt (2012). Gambetta and Hertog (2016, 131). 112 113 Moghadam (2009, 62). Moghadam (2009, 62). Bassiouni (2014, 71). Moghadam (2009, 62).

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use of violence. Not only does this lead Salafi jihadists to engage in takfir, that is “the process of labeling fellow Muslims as infidels (kufr), thus justifying violence against them,” but it also encourages them to “condone the targeting of civilians.”115 Salafi jihadism reflects a concern for group purity in at least two ways. First, Salafi jihadists believe in purifying the Muslim community and purifying Muslim lands, not only of non-Muslims, but of anyone that they deem insufficiently religious. For Salafi jihadist organizations such as ISIS, this includes all Shia Muslims as well as anyone who does not endorse their extreme interpretation of Islam. As Fawas Gerges observes with respect to ISIS, “Any Muslim or co-jihadist who doesn’t accept ISIS’s interpretation of the Islamic doctrine is an apostate who deserves death.”116 In addition, the desire for purity leads Salafi jihadists to attack culturally significant objects and heritage sites that are seen as sacrilegious. As ISIS “militants swept across Syria and Iraq, they destroyed, damaged, or looted numerous cultural sites and sculptures, condemning them as idolatry.”117 Social identity theory can help explain why Salafi jihadists differentiate themselves from, and denigrate, outsiders. However, the desire for purity can help explain why they have a strong desire to attack members of their own group. While the founders of al-Qaeda originally focused on attacking the far enemy (e.g., the United States and Israel), al-Qaeda in Iraq – the precursor to ISIS – focused on the near enemy (i.e., Shia Muslims, secular regimes in the Middle East, and apostates). Under the leadership of Abu Musab al-Zarqawi, al-Qaeda in Iraq launched a systematic campaign to “purify Islam and Islamic lands of apostasy.”118 In-Group/Out-Group Dynamics and Revenge Islamist extremists are not only concerned about moral and in-group purity, but in addition they tend to adopt rigid in-group/out-group distinctions. Consistent with the theory of Part I, people who adopt rigid in-group/out-group distinctions tend to be less compassionate toward others, and they can sometimes have a difficult time taking the perspective of people who are not part of their in-group. As Gambetta and Hertog observe, the rigidity with which people define in-group/out-group differences is important “because a strong group identity can drastically affect basic psychological patterns of empathy and antipathy, including schadenfreude, the pleasure that comes from seeing out-group members being harmed.”119 Studies in social identity theory routinely show that 115 118

116 117 Moghadam (2009, 62). Gerges (2016, 27). Gerges (2016, 30). 119 Gerges (2016, 82). Gambetta and Hertog (2016, 133).

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people who have rigid in-group/out-group boundaries are more likely to believe that using violence against “outsiders” is morally justified, and in some cases morally required.120 Because Islamist extremists have a rigid perception of in-group/out-group differences, they are more likely to support targeted attacks on civilians, particularly civilians from disfavored national, political, and religious groups. Although the focus of this subsection is Islamist extremism, it is an accepted fact within the literature on terrorism that collectivist ideologies of some sort play an important role in motivating people to use militant strategies and tactics. According to Robert Pape, “Modern suicide terrorism is best understood as an extreme strategy for national liberation against democracies with troops that pose an imminent threat to control the territory the terrorists view as their homeland.”121 In addition, Mia Bloom argues that militant groups use terrorism to out-bid their rivals in the struggle for public support in fighting relevant out-groups. For example, Hamas uses suicide attacks not just to coerce Israel but also to help it vie for public support against Fatah.122 This strategy is politically effective because it enables Hamas to play into nationalist concerns about suffering humiliation and injustice at the hands of the Israeli occupiers. And while other scholars emphasize the role of religion, Salafi jihadism in particular,123 religion is socially important in large part because it binds people together and separates them from others.124 Religion strives toward universalism, but it is deeply parochial. The literature on radicalization also shows that collective identity plays an important role in motivating individuals to support acts of violence against civilians. As the forensic psychiatrist and former Central Intelligence Agency (CIA) officer Marc Sageman has shown, the most common characteristic of radical Islamists is that they tend to radicalize together. Like other radicals, Islamist extremists typically start out on the path to radicalization in response to moral outrage at some injustice perpetrated against Muslims. Yet, as Sageman points out, moral outrage is the beginning, but not the end, of the process. Moral outrage “has to fit into a moral universe, to resonate with one’s own experience and to be amplified within a group for it to reach a level where it contributes to the formation of an Islamist terrorist.”125 In other words, in order to radicalize, individuals need to be connected with broader social networks of Islamist extremists who advocate violence. This means that social psychological factors such as groupthink, tribalism, and in-group/out-group 120 121 124

Cikara, Botvinick, and Fiske (2011) and Harris and Fiske (2011). 122 123 Pape (2006, 23). Bloom (2004). Moghadam (2009). 125 Graham and Haidt (2012) and Haidt (2012). Sageman (2008, 75).

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differentiation have a strong effect on radicalization. To understand the social factors that contribute to radicalization, Sageman has collected a database that maps the social connections that bind hundreds of Islamist radicals. According to his findings, “It turns out that joining the global Islamist terrorism social movement was based to a great degree on friendship and kinship.”126 Approximately “two-thirds of the people in the sample were friends with other people who joined together or already had some connection to terrorism.”127 Collective identity thus helps bind people together to support a particular cause. However, it also facilitates extremist violence by reducing the psychological restraints that stop most people from committing suicide or killing others. As terror management theory implies, identification with a “social group larger than oneself” can “increase one’s sense of personal power and significance,” and it can also reduce “one’s fear of death.”128 In-group/out-group differences also motivate people to justify the use of violence against out-group members. The more rigidly one draws in-group/out-group differences, the more inclined one is to actually engage in extremist violence. Salafi jihadists tend to have extremely rigid in-group preferences. As Gambetta and Hertog point out, rigid ingroup preferences are important because they underwrite “a disposition to take action, a decisiveness that pushes people who become extremists beyond armchair theorizing and thrusts them into the fray.”129 Although Islamist extremists are universalists in the sense that they see their ideology as a blueprint for all of humanity, they “vigorously … defend their religious in-group” against foreign intrusion.130 Finally, Islamist extremists often justify terrorist attacks by pointing to the perceived moral wrongs of their enemies. As I noted earlier, Osama bin Laden routinely argued that US citizens are fair game because they are not really innocent, and so they do not enjoy special protections. In his “Letter to America,” bin Laden argued that attacks against the United States are morally justifiable because of US attacks against Muslim peoples (or support for anti-Muslim attacks via its support for Israel (in Palestine) and Russia (in Chechnya)). Furthermore, bin Laden argued that it is morally justifiable to kill American citizens because they indirectly support US policies through elections. [T]he American people are the ones who choose their government by way of their own freewill; a choice which stems from their agreement to its policies. Thus the American people have chosen, consented to, and affirmed their support for the Israeli oppression of the Palestinians …. The American people have the ability 126 129

127 128 Sageman (2008, 66). Sageman (2008, 66). Kruglanski et al. (2014, 82). 130 Gambetta and Hertog (2016, 133). Gambetta and Hertog (2016, 134).

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and choice to refuse the policies of their Government and even to change it if they want.131

For Salafi jihadists such as bin Laden, Americans are collectively responsible for injustices against Muslims, and therefore they are liable to attack. Though couched in the language of responsibility, this argument reflects in-group/out-group thinking: Merely being American is enough to make one responsible for the harms and injustices perpetrated on Muslim people. When in-group/out-group differences are defined in terms of the purity/impurity matrix, and when out-groups are perceived as having committed injustices against the in-group, the results for innocent civilians can be especially troubling. Not only are the psychological limitations on killing the innocent significantly reduced, but they may disappear altogether. In cases like this, foreigners are not merely seen as different, but rather they are seen as a threat to the very existence or integrity of the in-group. Because the very existence of the out-group is perceived as a threat to the in-group, ethnic cleansing and genocide can result. Moreover, since Islamist extremists believe that “civilians…bear the responsibility for their government’s activities,” they contend that it is morally permissible to target them in war.132 In the following section, I apply these insights about the moral psychology of extremist violence to perhaps the most brutal Salafi jihadist group in recent world politics: ISIS. After briefly describing the political and historical context within which ISIS arose, I explain how extreme in-group/out-group dynamics and the concern for in-group purity motivate ISIS atrocities.

The Islamic State of Iraq and Syria The Islamic State of Iraq and Syria has its origins in the turmoil that was unleashed in Iraq after the US invasion and subsequent occupation of the country in the spring of 2003. Specifically, ISIS evolved out of what became, in October 2004, the Iraqi branch of al-Qaeda: al-Qaeda in Iraq (AQI). As Gerges points out, “by the end of 2002 and the beginning of 2003,” al-Qaeda was facing numerous “setbacks in Afghanistan, Pakistan, Yemen, and Saudi Arabia,” and, indeed, it may have been “near its breaking point.”133 The 2003 invasion of Iraq gave al-Qaeda “a new lease on life” by giving it a politically useful rallying cry.134 The leader of al-Qaeda’s branch in Iraq was a Jordanian known as Abu Musab 131 132

Source: www.theguardian.com/world/2002/nov/24/theobserver. 133 134 Kruglanski et al. (2014, 77). Gerges (2016, 72). Gerges (2016, 72).

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al-Zarqawi. A one-time petty criminal, Zarqawi was arrested in 1994 with his mentor Abu Mohammed al-Maqdisi and given a fifteen-year sentence for “establishing an illegal jihadist cell” in Jordan.135 Although he was granted an early release in 1999, Zarqawi’s experience in prison is believed to have played an important role in his transformation from a petty criminal to a “hardened killer and psychopath.”136 Having been repeatedly subjected to torture and solitary confinement, Zarqawi came to be “one of the most feared and respected figures among the prisoners.”137 Upon his release from prison, Zarqawi traveled to Afghanistan to establish a jihadist training camp in Herat, and he eventually made his way to Iraq after the United States invaded Afghanistan in October of 2001. After the US invasion of Iraq, Zarqawi eventually established ties with Osama bin Laden and Ayman al-Zawahiri and created AQI. Though bin Laden and Zawahiri were mainly concerned about fighting the US occupation forces in Iraq, Zarqawi had a far more extensive list of targets in his sights. In a letter to bin Laden and Zawahiri from 2004, Zaraqawi narrowed down his enemies to four groups: (1) the Americans; (2) the Kurds; (3) the Iraqi security forces; and (4) the Shias.138 Zarqawi wrote that killing Shias was “the key to change. I mean that targeting and hitting them in [their] religious, political, and military depth will provoke them to show the Sunnis their rabies and bare the teeth of the hidden rancor working in their breasts.”139 Zarqawi acted on his views with great zeal, killing scores of Shia Muslims during his tenure as the leader of AQI. Not only did his actions expose a strategic and operational rift with bin Laden and Zawahiri, who famously criticized Zarqawi for his attacks on Shiite civilians, but it eventually led many influential Islamists to castigate al-Qaeda Central for the actions of its affiliate in Iraq. In a 2007 letter to bin Laden, the Saudi preacher Salman al-Oudah accused bin Laden of “fostering a culture of suicide bombings” that was responsible for destroying “entire Muslim communities and families,” not to mention killing scores of innocent people.140 After Zarqawi’s death in 2006, AQI would eventually morph into the Islamic State of Iraq (ISI) and continue Zarqawi’s reign of death and destruction in the areas that it controlled. Zarqawi’s successors in ISI and ISIS would carry his campaign of violence to an allnew level, complete with online videos and magazines that displayed the group’s grotesque brand of cruelty, including “choreographed executions” and beheadings.141 135 138 140

136 137 Gerges (2016, 55). Gerges (2016, 55). Gerges (2016, 55–56). 139 Gerges (2016, 72–73). Quoted in Gerges (2016, 73). 141 Quoted in Gerges (2016, 92). Friis (2018, 246).

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As a result of the surge of US troops in 2007 and the Sunni Awakening movement, ISI was nearing on the brink of extinction. As terrorism specialist Daniel Byman observes, “The demise of AQI seemed nigh at the end of the last decade, when the United States killed the organization’s heads, Abu Ayyub al-Masri and Abu Omar al-Baghdadi.”142 But after the United States withdrew from Iraq in 2011, “zero-sum thinking returned to Iraqi politics.”143 Iraqi Prime Minister Nouri al-Maliki introduced a campaign of repression against Sunni Muslims that would eventually drive many who had fought AQI right into the hands of the group’s successor: ISIS.144 As neighboring Syria descended into the maelstrom of the Arab Spring uprisings in 2011, ISI established an organizational network in Syria known as Jabhat al-Nusra in 2012. As a result of al-Nusra’s successes in Syria as well as its attempts to distance itself from ISI, Abu Bakr al-Baghdadi, who had taken over as the leader of ISI, “sought to reassert” his “control by declaring sovereignty over the group in April 2013.”145 In doing so, he “unilaterally dissolv[ed] the Islamic State of Iraq and al-Nusra,” and “announced” the creation of “a new entity” “called the Islamic State of Iraq and Syria,” or ISIS in April of 2013.146 Despite Zawahiri’s attempts to mediate the conflict between ISIS and al-Nusra, the tension provoked internecine strife in which ISIS eventually emerged triumphant. In the summer of 2014, ISIS “swept back into Iraq” by seizing a number of “Sunni-populated” areas.147 On July 4th, Baghdadi declared a new caliphate. An analysis of the rhetoric that ISIS used to justify its atrocities, along with an analysis of the targets on which it tended to focus, strongly suggests that moralistic disgust and in-group purity, rigid in-group/outgroup distinctions, and a desire for revenge against perceived enemies played an important role in motivating ISIS violence. Other motivations were surely relevant, but a plausible interpretation of the available evidence is that these three factors combined to motivate the severe levels of violence that ISIS used against the civilian population in the areas under its control. Following AQI’s focus on the near enemy over the far enemy, ISIS has focused on targeting local police forces, military objects, and civilian persons and objects.148 Although ISIS has carried out attacks on civilian targets in the West – e.g., the Paris attacks that took place on November 13th, 2015 – most of its attacks on civilian targets have been directed

142 145 148

143 144 Byman (2016, 133). Byman (2016, 133). Byman (2016, 134). 146 147 Byman (2016, 135). Gerges (2016, 187–188). Byman (2016, 135). See the Global Terrorism Database, Perpetrator Group: ISIL.

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against other Muslims. According to the Global Terrorism Database,149 one of ISIS’s most devastating attacks took place on August 3, 2014, when their forces attacked Yezidi civilians in the Sinjar area of north Iraq. In the initial assault, 953 people were killed. However, as Valeria Cetorelli, Isaac Saasson, Nazar Shabila, and Gilbert Burnham observe, approximately 3,100 Yezidis were killed in the ensuing massacre.150 As this example suggests, ISIS has remained true to AQI’s focus on eradicating those individuals and groups whom it regards as apostates. This includes not only the Yezidis but also Shiite Muslims. According to Fawas Gerges, Abu Bakr al-Baghdadi shared Zarqawi’s genocidal hatred of the Shia. In Zarqawi’s words, Shias are the “insurmountable obstacle, the lurking snake, the crafty and malicious scorpion, the spying enemy, and the penetrating venom.”151 Baghdadi largely accepted this view, seeing the Shia as a mortal threat to the Muslim community and a “‘dagger’ in the heart of the Islamic world.”152 The moral logic of ISIS violence is noticeably displayed in its online magazines, Dabiq and Rumiyah.153 In addition to extolling the virtues of the Islamic State and articulating an apocalyptic world vision, Dabiq and Rumiyah both try to rationalize the use of violence against specific groups, including Shia Muslims. As Peter Wignell, Sabine Tan, Kay O’Halloran, and Rebecca Lange point out, the first several issues of Dabiq focused on explaining why Muslims should travel to Syria and Iraq to join ISIS, presenting “migration as an obligation” and warning “of the consequences of not becoming part of the so-called Islamic State.”154 As their state began to shrink under the onslaught of coalition airstrikes and enemy ground attacks, Dabiq began focusing more intently on attacking ISIS “enemies, far and near.”155 The Shias were high on the list of ISIS enemies. In an article entitled “The Rafidah: From Ibn Saba to the Dajjal,” ISIS provides a detailed rationale for genocide against the Shiites, eventually concluding that they are not real Muslims, but rather that they are “apostates who must be killed wherever they are to be found, until no Rafidi walks on the face of the earth.”156 In a textbook example of genocidal intent, the article portrays the Shia as a mortal 149 150 151 152 153 154 156

Website: www.start.umd.edu/gtd. Cetorelli et al. (2017). About 1,400 were executed and 1,700 died on Mount Sinjar. U.S. Department of State, “Zarqawi Letter.” Available at: https://2001-2009.state.gov/ p/nea/rls/31694.htm. Gerges (2016, 83). Dabiq ran from July 5, 2014 to July 31, 2016 and Rumiyah ran from September 6, 2016 to September 9, 2017. 155 Wignell et al. (2017, 10). Wignell et al. (2017, 18). Dabiq (2016, Issue 13, 45). “Rafida” is a derogatory term for Shia Muslims that means “rejecters” or “those who reject.”

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threat to the integrity to the Muslim ummah, it dehumanizes them by comparing them with animals such as vultures and snakes, it repeatedly refers to Shia political and religious leaders as “filthy,” and it accuses them of conspiring with the other enemies of Islam (i.e., American “crusaders” and the Jews) to subjugate Muslim lands. Indeed, it presents the Shia Muslims as a fifth column intent on destroying Sunnis.157 For these reasons, the article extolled “Shaykh al-Zarqawi’s plan to cleanse Iraq of the Rafidah.”158 Islamist extremism “of the ISIS variety”159 presents what may be the starkest counterexample to the idea that there are transhistorical cultural universals, not to mention my argument about innate moral beliefs and emotions.160 But although it is impossible to “get inside the heads” of ISIS fighters, the evidence suggests that ISIS does not falsify the theoretical framework put forth in this book. First, as I noted in Part I, my claim is that the mind comes equipped with cognitive-emotional biases that lead most people to believe that it is wrong to kill the innocent, not that there are exceptionless moral universals. Indeed, what makes ISIS so exceptional is that its brand of violence goes against the grain of modern moral sensibilities – within Muslim societies as well as in the broader world.161 Further, as political scientists John Mueller and Mark Stewart show, terrorism itself is exceptional. According to their estimates, the chances of an American dying in a terrorist attack “in a given year” is about one in 3.5 million – an exceedingly low probability.162 Second, my theory holds that moral cognition is group-oriented. People routinely view friends, family members, coreligionists, and co-ethnics as having a stronger moral claim on their behavior. When these social bonds are expanded by cognitive and emotional capacities for perspective-taking and empathy, they can provide a foundation for recognizing the moral rights of others. But while most people are group-oriented in their moral outlook, they are usually not genocidal. Genocidal violence occurs when in-group/out-group distinctions are taken to the extreme. As the examples of AQI and ISIS suggest, when in-group/out-group identities are defined in rigid terms that reflect the purity/impurity matrix, the

157 159 161

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158 Dabiq (2016, Issue 13, 41). Dabiq (2016, Issue 13, 41). 160 Gerges (2016, 290). Friis (2018, 256). In a Pew Research Center poll taken in the fall of 2015, respondents from Muslim states expressed overwhelmingly negative attitudes toward ISIS. For example, 94 percent of Jordanians and 79 percent of Indonesians claimed to have an unfavorable view of ISIS. The only exception was Pakistan. In Pakistan, 28% of respondents said that they had an unfavorable view of ISIS, whereas 9% said that they had a favorable view. Sixty-two percent said that they had no clear opinion. See Poushter (2015). Mueller and Stewart (2012, 103).

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results can be quite deadly. In the case of ISIS, it led to genocidal atrocities against the Yezidis and Shia Muslims.

Conclusion This chapter has contributed to our understanding of the origins of the laws of war in early Islam. More specifically, I have defended four key claims. First, in contrast to the idea that Islamic law allows for intentional attacks on noncombatants, the evidence shows that, from an early period, Islamic law has prohibited intentional attacks on noncombatants, particularly women and children. Though this does not mean that individual Muslims and especially Islamist extremists comply with the laws of armed conflict, it does mean that there is an “overlapping consensus” on reasonable laws of war among civilizations with diverging comprehensive doctrines, as John Rawls would say.163 Second, even though the historical record is spotty and incomplete, the available evidence suggests that this overlapping consensus did not emerge merely as a result of the kinds of ecological factors that functionalist theories of norms might emphasize. As I argued in the case of ancient China, the evidence indicates that the formation of the sovereign state system in the transition from the Spring and Autumn era to the Warring States period is the ecological factor that was most responsible for the emergence of civilian protection ideas. However, in the case of Islam, the formation and expansion of the Islamic state may have been relevant for the evolution of Islamic law, but civilian protection norms were most likely a cultural holdover from pre-Islamic rules of war on the Arabian Peninsula. Third, even though the historical record does not provide the granularity of detail necessary to know for certain why civilian protection norms arose and remained salient during the transition to the early Islamic state, circumstantial evidence indicates that existing theories do not adequately account for their emergence and durability. Moreover, some evidence indicates that early Muslims viewed civilian protection rules as inherently normative and that they may have been related to the Prophet Muhammad’s experiences in warfare. Although this is clearly not “smoking gun” evidence for the claim that emotional propensities underlie the principle of distinction, the fact that Muslim legal scholars use principles that are similar in kind to those used by Western just war theorists to distinguish legitimate from illegitimate targets, and the fact that they use the intention/side-effect distinction points toward a role for 163

Rawls (1999b) and March (2007).

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shared cognitive-emotional biases. Although constructivist and rationalist theories of norms can provide important insights into the emergence and durability of civilian protection norms, they will be able to better explain their emergence and durability by integrating the account of moral psychology that I set forth in Part I. More specifically, the notion that civilian protection norms are affect-backed is not only useful for explaining how they emerge but it is also useful for helping account for why they remain durable. Despite the many changes that the rise of Islam brought about, it did not bring about any significant changes in how people perceived the need to protect those who do not fight. If anything, it rendered the informal norms against killing women and children even more binding on the behavior of those who follow Islam. The theory articulated in Chapter 2 helps explain why civilian protection norms have remained durable for so long: It is because they resonate with powerful emotional intuitions. Finally, I have shown how the theory can be used to account for discrepant cases, especially Salafi jihadist groups such as AQI and ISIS. The evidence suggests that not only do Salafi jihadists disregard Islamic legal restraints on the use of force, but that the vast majority of people in Muslim-majority countries do not support ISIS-like extremist violence. Moreover, the genocidal ideologies of AQI and ISIS are exceptional, but they do not falsify the theory. Followers of these Salafi jihadist organizations tend to have a strong conservative moral ideology that focuses on in-group purification. They also tend to accept extremely rigid in-group/ out-group distinctions, in some cases directly calling for the eradication of apostates through mass killings, the destruction of cultural heritage sites, and other crimes against humanity. In short, Islamist extremist groups like AQI and ISIS are the exceptions that prove the rule, a fact which might explain why ISIS was more successful at creating enemies and uniting the world against it than it was at holding onto its land.164

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5

Moral Emotions and Natural Law The Peace of God, Catholic Just War Theory, and the European Enlightenment

The preceding chapters have shown that civilian protection norms are not mere artifacts of Western culture and the Christian just war tradition. Despite the important differences that separate Warring States China and the early Islamic empire from Western Europe, the moral and legal rules that they developed for controlling the use of organized violence are strikingly similar. In my view, this suggests that the laws of war are not so much “invented,” but rather that they are “discovered” through intuition and reasoning, a view that motivated the natural law school of legal philosophy.1 In this chapter, I examine the early evolution of civilian protection norms in medieval Europe, and I trace their development in the religious and secular strands of the just war tradition in the West. I establish three key claims. First, I argue that that the principles of distinction and proportionality did not originate with just war moral theorists such as St. Augustine, but rather the norm of civilian immunity did not emerge until later with the Peace of God movement in AD 990. Second, in a way that foreshadows my argument in Part III, I argue that the political actors who were involved with the Peace of God used emotional moral arguments to create rules of war that would not only protect the innocent but would also further their political interests. Finally, I argue that despite the fact that jus in bello norms of war have changed dramatically over time, my claim that they are grounded in evolved moral emotions and heuristics best explains why they have persisted up to the modern era. This chapter is organized as follows. In the following section, I briefly outline the historical origins of the laws of war in Western Europe. I then explain why existing theories of international relations do not account for the early emergence of civilian protection norms in the West. The laws of war emerged as an intuitive reaction to historical contingencies and situations over which people had little control, but nevertheless I argue

1

McMahan (2008, 34).

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that moral intuitions and sentiments played a key role in the emergence and evolution of the principles of distinction and proportionality. Not only does the textual evidence on the Peace of God movement show that emotional ethical arguments played a key role in generating support for civilian immunity norms, but in addition a detailed analysis of major philosophical treatises on international law shows that the reason why the principles of distinction and proportionality have survived up until the modern era is because they are affect-backed. There are two critical pieces of evidence that indicate a central role for emotions and cognitive heuristics. First, the textual evidence indicates that the progressive secularization of European just war theory and the expansion in scope of the category of innocent civilian from Westerners to non-Westerners was underwritten by intuitive responses to reports of civilian victimization by Spanish imperialists. Second, the evidence also shows that moral emotions played a key role in motivating the evolution of just war doctrine into positive international law. In fact, one of the reasons why Emmerich Vattel felt that “the strictness” of natural law should be left to “the conscience of sovereigns” was because he believed that this would help reduce the suffering of war.2 When people believe that they “have justice on their own side,” they have a tendency to deny that their enemies have any rights at all, and they thereby tend to act with fewer moral restraints.3 As a result, Vattel believed that we should hold states accountable to the voluntary law of nations. In short, moral emotions concerning the protection of innocent people help to explain why civilian protection norms arose in the first place and evolved into positive international law. The Peace of God Movement and the Emergence of Civilian Protection Norms The works of St. Augustine are typically regarded as the intellectual foundation of the just war tradition in Western civilization. During the time of Augustine, Christian pacifists thought that it was always wrong for Christians to engage in war, for Christ had taught his followers to turn the other cheek instead of reacting with violence. In Augustine’s view, however, it can be permissible to use violence provided that certain conditions are met – i.e., that the cause is just, that it is done in obedience to divine commands, that it is undertaken by a rightful authority for the right reasons, and so forth.4 Yet, despite the fact that Augustine was one 2 4

Vattel (2008, 590) and Kalmanovitz (2018, 225–226). Augustine, Contra Faustum Manichaeum, Book 22.

3

Vattel (2008, 589).

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of the first just war theorists in the West, he says surprisingly little about the principle of noncombatant immunity. Some scholars argue that Augustine’s neglect of civilian immunity derived from his overall approach to war. For Augustine, “death is merely a physical evil,” and it is not the main “evil to be shunned in war.”5 As Richard Hartigan explains, “If guiltless people are slain in a just war it is lamentable but not condemnable, for God often permits the innocent to be scourged with the guilty in this life …. Those who kill while prosecuting a just war are condemned … only if they do so from a motive of private passion or vengeance, or if they continue to slay when it is no longer necessary to obtain victory.”6 Alternatively, John Langan argues that Augustine may have failed to sketch out precise restrictions on killing civilians because he felt that these concerns were already addressed in his account of the moral virtues of the soldier.7 Likewise, St. Thomas Aquinas made few direct comments about the morality of targeting civilians in war. The idea of civilian immunity thus did not emerge out of the early just war theory, but rather it has its historical roots in a social movement known as the Peace of God that materialized circa AD 990 in what is now Southern France.8 The immediate cause of the Peace of God movement was the “progressive deterioration of public authority in France,” and the consequent rise in feudal violence.9 As historian Christian Lauranson-Rosaz points out, “If there [was] a ‘century of violence,’ the tenth century was it …. In the Auvergne, violence committed by lords appears in isolated references in the early tenth century documents but becomes more frequent by midcentury.”10 During this period of European history, the system of public authority that had emerged during the time of Charlemagne eroded as a result of “the progressive partition of Charlemagne’s empire and the impact of the Viking and Muslim invasions,” which “destroyed Carolingian political authority and administrative institutions.”11 As a result, the old Carolingian system of justice was “replaced by a multiplicity of local lords who built castles and who vied with each other for the control of their neighborhoods, while they knew the restraining hand of no superior lay authority.”12 In short, the deterioration of public authority created something like a Hobbesian state of nature where “private warfare became endemic among the warrior nobility.”13 Consequently, there was a dearth of institutional responses to check the power and violence of feudal warlords, a situation that not only 5 8 9 12

6 7 Hartigan (1966, 203). Hartigan (1966, 203). Langan (1984, 32). Johnson (1981); Johnson (1997); Hartigan (2010); Kinsella (2011). 10 11 Cowdrey (1970, 46). Lauranson-Rosaz (1992, 106). Sargent (1985, 219). 13 Cowdrey (1970, 46). Sargent (1985, 219).

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threatened the interests of the Catholic Church but also endangered the lives and livelihoods of the peasantry.14 In medieval Europe, the Catholic Church was one of the largest owners of property, and as a result it often fell victim to the “depredations” of “local lords.”15 The predatory violence of feudal lords, whose power and status depended primarily upon military prowess, posed a significant threat to the interests of the Catholic Church. Rural peasants were frequently caught in the crossfire. This created an alliance of interests between peasants and the Church, and in order to quell the violence, clergymen in the dioceses of Southern France convened a series of Church councils in an attempt to set down restraints on feudal violence. As a spiritual movement, the Peace of God “represented an attempt to establish the kingdom of God on earth by creating the conditions of peace and order necessary to human salvation. As a temporal movement it united the clergy of southern France in an effort to defend themselves and other noncombatants against the depredations of the nobility.”16 The main concern of the Peace of God movement was to prevent attacks on clerics, to stop feudal lords from stealing Church property, and to prevent them from harming the interests of merchants and peasants.17 The movement did this by convening Church councils that were designed to pressure feudal lords into adopting restraints on the use of violence. In these council meetings, Church leaders would sometimes coerce members of the nobility to swear to peace oaths as well as to rules for safeguarding clergymen, Church property, peasants, and merchants. The punishment for violating these rules was excommunication, a not insignificant punishment in light of the central role that the Christian faith played in medieval European politics. The rules of the first Church Council in Charroux in AD 989 illustrate the concerns of the Peace of God: (1) If anyone attacks the holy church, or takes anything from it by force, and compensation is not provided, let him be anathema. (2) If anyone takes as booty sheep, oxen, asses, cows, female goats, male goats, or pigs from peasants or from other poor people – unless it is due to the fault of the victim – and if that person neglects to make reparation for everything, let him be anathema. (3) If anyone robs, or seizes, or strikes a priest, or a deacon, or any man of the clergy who is not bearing arms … but who is simply going about his business or remaining at home, and if, after examination by his own bishop, that person is thus found to be guilty of any crime, then he is guilty of sacrilege, and if he furthermore does not come forward to make satisfaction, let him then be held to be excluded from the holy church of God.18 14 16 18

15 Sargent (1985, 219). Cowdrey (1970, 46) and MacKinney (1930, 182). 17 Sargent (1985, 220). Sargent (1985, 220). Head and Landes (1992, 327–328).

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As this document indicates, the primary concern of the Church was not entirely altruistic: It seems to have been primarily interested in protecting its members and property from predatory violence, and it was only secondarily interested in the welfare of noncombatant peasants. Indeed, the second canon indicates that the Church was more interested in protecting peasant property, livestock, and labor than it was in protecting peasants themselves. As Hans-Woerner Goetz observes, the Church implemented these “measures … to maintain the production of food.”19 However, these peace oaths were eventually extended to protect actual peasant lives. In an oath proposed by Bishop Warin of Beauvais to King Pious in AD 1023, knights were prohibited from attacking “merchants or pilgrims,” and they were also not allowed to “take their possessions unless they commit crimes.”20 And despite the fact that the formal Church hierarchy played a significant role in promulgating the peace oaths, the broader Peace of God movement had a sizeable, and indeed fairly influential, popular element.21 The Peace of God movement eventually spread to other parts of Europe, and the idea that certain classes of individuals should be granted special protection in war became a central element of the Catholic just war tradition.22 Although the medieval code of chivalry had a strong influence on the concept of civilian immunity, the chivalric code was mainly used as a status marker between wealthy knights and commoners.23 Knights could gain prestige and glory by killing other knights, not unarmed peasants. Yet, in the emerging just war doctrine killing civilians was a matter of justice. As James Johnson explains, “In the canon law, those persons named as noncombatants [were] spared the ravages of war by simple justice.”24 Since they were “not making war,” they could not by justice have had “war made against them.”25 Hence, despite the fact that state formation played a key role in motivating the creation of humanistic values in ancient China, in the European Middle Ages, it was the deterioration of public order that created the impetus to develop civilian immunity norms. This means that in order to explain how humanistic values arise in the first place, we need to better understand how people morally experience and respond to the conditions of their social existence. The historical evidence discussed thus far clearly seems to demonstrate that some principle of distinction arose in early medieval Europe and that the Peace of God movement played a major role in its 19 22 25

Goetz (1992, 267). Johnson (1981, 131). Johnson (1981, 138).

20

21 Head and Landes (1992, 333). MacKinney (1930). 24 Johnson (1981, 131). Johnson (1981, 138).

23

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development. However, the evidence does not indicate why the Peace of God movement endorsed these principles, nor does it show why the idea of civilian immunity survived in Catholic just war doctrine. Although it is difficult to provide direct psychological evidence for the view that cognitive and emotional biases influenced the emergence and durability of civilian protection rules, in the rest of this section I argue that the theory of moral cognition and emotion set forth in Chapter 2 provides a plausible explanation for why some rule of civilian immunity arose and stayed salient in just war doctrine in the West. This conclusion rests on two key arguments. First, I argue that my account helps fill the gaps left by constructivist and rationalist accounts of the laws of war. Second, I argue that a close examination of the writings of just war theorists shows that an increasing sense of empathy for war victims led them to defend a more inclusive and more impartial set of restraints. In The Image Before the Weapon, Helen Kinsella argues that the discourses of civilization, gender, and innocence socially construct the distinction between combatant and civilian. Building on poststructuralist theories of discourse, she argues that at each point in history, these discourses are used, albeit not necessarily in a conscious sense, to stabilize the difference between combatants and noncombatants. Because it is inherently difficult to specify who is, and who is not, a combatant, just war theorists and international lawyers use these discourses to construct the difference between combatants and civilians, thereby stabilizing a particular social order by fixing a system of cultural meaning. The principle of distinction is defined in and through discourse.26 In the case of medieval Europe, Kinsella argues that the principle of distinction did not reflect a natural category, but rather that it largely served to reify “the desired social order promulgated by the Church.”27 In her view, there is nothing natural about the distinction between soldiers and civilians. Rather, this distinction “must be produced.”28 By “distinguishing the clergy from the knights, the peasantry from the clergy, and the landed aristocracy from the peasantry,” the Peace of God movement effectively “‘helped … cement the division of society into three orders … and to lay the foundation for the feudal order,’”’29 an account that helps explain why the peace oaths originally focused on protecting the clergy, and why protecting actual peasant lives was only a secondary interest, motivated by economic concerns.

26 29

27 28 Kinsella (2011, 5). Kinsella (2011, 40). Kinsella (2011, 5). Kinsella (2011, 40). The quote comes from Paxton (1992, 32).

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I do not disagree that the Peace of God reflected the “desired social order promulgated by the Church.”30 Indeed, as I pointed out in Chapter 2, powerful actors often use moral arguments to justify their practices. However, the textual evidence from the Peace of God movement shows that the moral beliefs that motivated social action are very similar to the moral grammar that I sketched out in Chapter 2. For example, the textual evidence that I quoted from the Council of Charroux in AD 989 clearly shows that those who wrote this peace oath believed that it is wrong to kill people who do not bear arms, and the peace oath of Beauvais in AD 1023 demonstrates that the basis for granting such immunity had to do with one’s moral innocence from committing a crime. Although I accept that interpretations of moral innocence are often socially constructed, the notions of failing to comply with, or directly violating, a social norm are fairly ubiquitous across cultures.31 In short, discursive practices may define the meaning of “innocence” or “guilt” at any specific point in time, but there is a finite set of ways in which these concepts can be articulated or defined. And although it may be true that the religious practices of the Church required that clergymen be seen as civilians, the granting of immunity was based primarily on whether people participated in war. Participating in war does not necessarily involve committing a moral injustice, but it does involve presenting an active threat to the lives of others, and this is often seen as crucial in moral justifications for killing. How do we know whether emotions played a role in the development of civilian immunity norms in European international politics? Perhaps one might argue that the development of civilian protection ideas was a result of strategic calculations, not moral beliefs and sentiments. Indeed, the evidence shows that the Catholic Church had strong interests in promulgating an ethical code that placed clergymen, Church properties, and so forth in a protected category. The canon of Charroux even indicates that the Church had a stronger interest in protecting peasant property than it did in protecting peasants themselves, and so one can plausibly argue that the only reason why the Church wanted to protect the interests of peasants at all was to increase their own political power vis-à-vis feudal lords. Also, one might argue that the Church’s power to excommunicate was the only reason why feudal knights signed on to the peace oaths. Without the threat of excommunication from the Christian community, they most likely would have continued on as before. Furthermore, it is very difficult to determine whether moral beliefs and

30

Kinsella (2011, 40).

31

Brown (1991).

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emotions shaped the design of the peace oaths, or whether the peace oaths were designed for strategic or other reasons. I have two responses to this problem. First, although the Church did have material interests in checking the power of feudal lords and protecting clergymen and peasants, the peace oaths were clearly influenced by moral beliefs – even if only in an instrumental fashion. When the peace oaths held that knights should avoid killing peasants and clergymen, they articulated a moral vision that killing unarmed clergymen or peasants who have committed no crime is inherently unjustified and ought to be avoided. It is true that the Church may have made such claims for its own strategic and political interests, but the notion of justice that undergirded such claims cannot have had its basis in strategic calculations, for they clearly used ethical arguments to articulate the notion that knights should not kill unarmed clergymen, peasants, merchants, or pilgrims. Some additional factor must have influenced their belief that it is not simply against the interests of the Church and its followers to kill clergymen or peasants, but it is morally unjust to do so. Second, the evidence indicates that the church councils were heavily infused with emotional and religious significance, and this makes it very likely that emotive arguments influenced the content of the resulting oaths. As the historian Loren MacKinney observes, the emotionalism of the councils played a key role in building popular support for the Peace of God movement. As MacKinney explains, From 989 to the Council of Clermont in 1096, scarcely a decade passed without some manifestation of the willingness with which the masses would rally to the cause of peace and justice …. The rank and file of the people were present as witnesses, if not actual as actual oath-takers. The attendance of the common folk not only served as an additional guarantee of strict fulfillment of the agreements, but also greatly stimulated public interest and paved the way for more active participation in the peace movement. Furthermore, the use of relics in solemnizing peace pacts gave these an increased importance in the popular mind, and greatly strengthened the moral pressure …. The joyous emotion that accompanied the display of the relics … created a psychological situation under the influence of which the nobles … were constrained to adopt a … ‘pact of peace and justice.’32

Even though it is difficult to know for sure whether moral emotions directly influenced the design of the peace oaths, this description suggests that the Councils were heavily infused with emotional significance, and that it was the emotionalism of the Councils, rather than instrumental calculations that helped generate broad support for setting limitations on the use of violence. 32

MacKinney (1930, 184–186).

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The only principles that do not seem to have influenced the Peace of God movement were the intention/side-effect distinction and the principle of proportionality. Yet, as Johnson points out, intentions were already a very significant part of the evolving Catholic just war tradition, especially when it came to jus ad bellum considerations.33 In his Contra Faustum, for instance, St. Augustine responds to the Christian pacifist view that God could not possibly “enjoin warfare” because good Christians should “resist not evil” and turn the other cheek, by claiming that “what is here required is not a bodily action, but an inward disposition. The sacred seat of virtue is the heart.”34 In his view, “the real evils in war are love of violence, revengeful cruelty, fierce and implacable enmity, wild resistance, and the lust of power, and such like; and it is generally to punish these things, when force is required to inflict the punishment, that, in obedience to God or some lawful authority, good men undertake wars.”35 For Augustine the evil of war is not so much the material reality of death and suffering per se, but rather it is the “inner attitudes” or intentions that armed hostilities involve.36 This is the source of the idea that just wars must not only possess a just cause but that they must also be motivated by a rightful intention – an idea that Aquinas would later include in his three conditions for the rightful waging of war.37 Though Augustine did not articulate a clear principle of distinction, the principle of rightful intention opened up just war doctrine “in the direction of a jus in bello.”38 The principle of proportionality comes out most clearly in Aquinas’s doctrine of double-effect (DDE). Like Augustine before him, St. Thomas Aquinas says relatively little about the principle of civilian immunity.39 However, his discussion of the DDE applies quite directly to questions about the morality of killing in war. In fact, his presentation of the DDE suggests such an interpretation. In response to the question of whether it can ever be permissible to kill someone in self-defense, Aquinas argues that as long as one only intends to save oneself, not to kill another person, it can be morally permissible. That said, the DDE implies that even if one only intends a good effect, the action “can be rendered unlawful” if the bad effect is “disproportionate” to the good effect.40 For these reasons, Aquinas believed that it is “unlawful to use 33 34 35 36 37 38

Johnson (1975, 40). Augustine, Contra Faustum, Book 22. Available online at www.newadvent.org/fathers/ 140622.htm. Augustine, Contra Faustum, Book 22. Langan (1984, 28) and Hartigan (1966, 198). The other two conditions are “just cause” and “rightful authority.” 39 40 Johnson (1975, 41). Kinsella (2011, 36). Aquinas (2002, 170).

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greater force than necessary to defend one’s life.”41 Finally, even though Aquinas did not articulate a clear principle of civilian immunity, his comments on the ethics of homicide clearly show that he intended the DDE to apply to the domain of warfare, and not just to interpersonal violence. As he explains, “It is unlawful for human beings other than those holding public authority to intend to kill an aggressor in the course of selfdefense,” and even in these cases they are only permitted to do so if such killing relates “to the public good. The latter is evident in the case of soldiers warring against enemies,” “although even” soldiers can “sin if they are motivated by private animosity.”42 This last comment shows that even though Aquinas grants soldiers broad authority to kill, their actions can be immoral if done out of malicious intentions. In any case, even though the intention/side-effect distinction and the principle of proportionality were not clearly set forth in the Church Councils of the Peace of God movement, they eventually came to be critical components of just war doctrine. As I argue in the next section, my contention that these principles are affectbacked helps explain their emergence and durability.

From Just War to International Law: Religious and Secular Perspectives on Killing in War The early history of just war theorizing suggests that there were a wide variety of normative principles for regulating armed conflicts. Not only did the jus ad bellum principles of St. Augustine and St. Thomas Aquinas prohibit states from waging war for territorial aggrandizement and power, but in addition the jus in bello principles that originally emerged out of the Peace of God movement and the knightly code of chivalry limited the use of violence to specific categories of people, they imposed restrictions on the days that states could fight, who could permissibly participate in war, and so forth. Moreover, as James Johnson points out, Western just war theorizing eventually broke up into two interrelated yet distinct traditions: a religious tradition rooted in canon law and Catholic philosophy, and a secular tradition that developed as a result of the Protestant Reformation and, later on, the European Enlightenment.43 Although the moral justifications for waging war changed quite significantly as a result of the growing secularization of Western political theory, jus in bello norms that protect noncombatants survived mostly intact. Moreover, the class of subjects who are granted protection from intentional violence expanded quite dramatically, culminating in what 41

Aquinas (2002, 170).

42

Aquinas (2002, 170).

43

Johnson (1975).

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we now call international humanitarian law (IHL). Examining the works of Vitoria, Suarez, Grotius, and Vattel, in this section I argue that a plausible explanation for the historical trajectory and continued salience of jus in bello norms is that they are affect-backed. Moral emotions such as compassion not only played a key role in expanding the domain of natural law to apply to all of humankind but they also encouraged Enlightenment theorists such as Vattel to argue that the laws of armed conflict should protect prisoners of war (POWs) who participate in unjust wars.

The Secularization of Just War Doctrine: Jus in Bello Principles in Vitoria and Suarez One of the first Catholic theologians to explicitly defend the idea that it is unlawful to target innocent civilians was Francisco de Vitoria.44 In his classic treatise De Jure Belli – “On the Laws of War” – Vitoria claims that “the foundation of the just war is the injury inflicted upon one by the enemy,”45 and that the innocent should not be killed because they have done nothing immoral. With respect to jus ad bellum principles, Vitoria argues that states must have a just cause, but he claims, contrary to those who endorsed the idea of holy war, that it is impermissible for states to wage war for the purpose of spreading religion.46 In the case of indigenous peoples in the Americas, Vitoria famously argued that refusing to receive the Christian faith is not a legitimate basis of enslavement. In his view, since the natives had not wronged the Spanish, they could not be legally dispossessed.47 For Vitoria, “before [the] arrival of the Spaniards these barbarians possessed true dominion, both in public and private affairs,” and this meant that it is impermissible to deprive them of their territory without a justified cause, which in his view requires that the person or group in question has to be culpable of injuring the one who claims the right to use force.48 Although some Christians believed that it is permissible to wage war for the purpose of spreading the Christian religion, Vitoria argued that the Spanish cannot legitimately attack indigenous peoples even if they reject Christianity upon being exposed to rational arguments in its favor. However, Vitoria argued that it can be

44 47 48

45 46 Hartigan (2010, 84). Vitoria (1991, 314). Vitoria (1991, 302). Vitoria (1991, 251). Vitoria (1991, 251); Nevertheless, the derogatory terms that Vitoria uses to express this argument shows that he was not motivated by a concern for universal human rights, if by this we mean a concern for intrinsic human equality.

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permissible to wage war against native peoples if they prevent the Spanish from trying to spread Christianity. As long as the Spanish do so peacefully, Vitoria argued that they have the right to preach the word of God, and they cannot lawfully be prevented from exercising this right. Similar concerns motivate the just war doctrine of Francisco Suarez.49 Like Vitoria, Suarez contends that the only ground for a justified war is “the infliction of a grave injustice which cannot be avenged or repaired in any other way,”50 and that states can only lawfully wage war for reasons of upholding the principles of natural law, which, in Suarez’s view, means that states cannot legally use force to impose religious beliefs in international politics.51 According to Suarez, “There is no ground for war so exclusively reserved to Christian princes that it has not some basis in, or at least some due relation to, natural law, being therefore also applicable to princes who are unbelievers.”52 With respect to the idea that religious differences provide a justification for using military force, Suarez says that Christian princes do not have the requisite authority to coerce unbelievers into accepting the faith, and this is because legitimate authority resides in the sovereign prince of the unbelievers. Moreover, Suarez argues that Christians cannot wage war for religion on the grounds that they are avenging injuries against God. This is because “God did not give to all men the power to avenge the injuries they do to Him, since He can easily avenge Himself, if He so wills.”53 However, there are some cases where Suarez does allow states to wage war for religious purposes. If, for example, the people of a foreign nation are open to Christianity and their prince is an infidel, Suarez believes it is permissible to intervene to help the people against their sovereign.54 But even in cases like this, Suarez does not go beyond natural law, for in his mind, preventing “the acceptance of the law of Christ does indeed involve grievous injustice and harm.”55 More generally, Vitoria and Suarez think that the only reason for waging war is culpability for harms inflicted. For Vitoria, “offensive war is for the avenging of injuries and the admonishment of enemies, as we have seen; but there can be no vengeance where there has not first been a culpable offence …. Likewise, a prince cannot have greater authority over foreigners than he has over his own subjects; but he may not draw the sword against his own subjects unless they have done some wrong; 49 51

52 55

50 Suarez (2015). Suarez (2015, 929). However, Suarez does allow states to force their own subjects to “to hear the faith” of Christianity (Suarez 2015, 853). But in this case, the state has a special kind of authority over its own citizens that it lacks in relation to noncitizens. See Johnson (1975, 164). 53 54 Suarez (2015, 942). Suarez (2015, 938–939). Suarez (2015, 942). Suarez (2015, 942).

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therefore he cannot do so against foreigners except in the same circumstances …. It follows from this that we may not use the sword against those who have not harmed us; to kill the innocent is prohibited by natural law.”56 Though in this passage Vitoria is talking about the jus ad bellum principles of just war doctrine, these conclusions apply equally to jus in bello principles. According to Vitoria, “It is never lawful in itself intentionally to kill innocent persons.” This is proved in the first place, by Exod. 23:7, where it says ‘the innocent and righteous slay thou not.’ Second, the foundation of the just war is the injury inflicted upon one by the enemy …; but an innocent person has done you no harm …. Third, within the commonwealth it is not permissible to punish the innocent for the crimes of the evil and therefore it is not permissible to kill innocent members of the enemy population for the injury done by the wicked among them.57

That said, Vitoria believes that it can be permissible to kill civilians just in case their deaths are an unintended side effect of otherwise justifiable tactics. Building on Aquinas’s DDE, he argues that [I]t is occasionally lawful to kill the innocent not by mistake but with full knowledge of what one is doing, if this is an accidental effect: for example, during the justified storming of a fortress or a city, where one knows there are many innocent people, but where it is impossible to fire artillery and other projectiles or set fire to buildings without crushing or burning the innocent along with the combatants. This is proven, since it would otherwise be impossible to wage war against the guilty, thereby preventing the just side from fighting. Nevertheless, we must remember the point … that care must be taken to ensure that the evil effects of the war do not outweigh the possible benefits sought by waging it …. Finally, it is never lawful to kill innocent people, even accidentally and unintentionally, except when it advances a just war which cannot be won in any other way.58

As I explain in later chapters, Vitoria’s use of the intention/side-effect distinction and the principle of proportionality have become a mainstay of IHL. However, one thing that distinguishes Vitoria’s just war doctrine from modern IHL is the connection he makes here between jus ad bellum and jus in bello law. In modern IHL – not to mention modern just war theory – 59 there is a clear separation between jus ad bellum and jus in bello principles. In IHL, the same jus in bello rules apply regardless of whether states comply with or violate jus ad bellum rules. But for Vitoria, the justice of the war is crucial for evaluating in bello conduct: If civilians are killed in an illegal or unjust war, it is always wrong, regardless of whether they are killed intentionally or accidentally. 56 58 59

57 Vitoria (1991, 303–304). Vitoria (1991, 314–315). Vitoria (1991, 315–316). Walzer (1977). For a criticism of this view, see McMahan (2009).

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Likewise, Suarez argues that in a just war, states are not permitted to intentionally kill noncombatants, and this is because in just wars, states are permitted to do anything that makes it more likely that they will prevail, and, save for exceptional circumstances, targeting noncombatants will not increase the chances of victory. Furthermore, it is always evil to intentionally kill people who are free from guilt and who do not participate in armed hostilities.60 The only exceptions to this are those cases in the Old Testament where God directly commands his followers to kill civilians, for “only God” can give “such an order.”61 Yet, even in these cases one might plausibly conclude that the people in question are not really innocent, for God would not order the innocent to be slain.62 But this still leaves us with a problem, especially in those cases where God orders his followers to raze entire cities to the ground. In cases like this, “it is practically certain that, among a whole multitude, some may be found who neither consented to the war nor gave any assistance to it, but who, on the contrary, urged the acceptance of peace; and therefore, all may not be indiscriminately slain.”63 The problem here is similar in kind to the problem that confronts any decision-maker who must weigh the costs and benefits of total warfare strategies: innocent civilians will inevitably die. Interestingly, Suarez responds to this problem in roughly the same way that US and British officials often did during the Allied bombing campaigns of World War II. He argues that God’s orders were “given in time of actual combat,” and that “upon such occasions it is scarcely possible to distinguish the innocent from the guilty, except through age and sex.”64 Furthermore, in a related passage, Suarez argues that as long as civilian deaths are not intentional, extreme tactics such as “the burning of cities and the destruction of fortresses” can be morally permissible.65 [W]hoever has the right to attain the end sought by a war, has the right to use these means [i.e., the burning of cities and the destruction of fortresses] to that end. Moreover, in such a case, the death of the innocent is not sought for its own sake, but is an incidental consequence; hence, it is considered not as voluntarily inflicted but simply as allowed by anyone who is making use of his right in a time of necessity.66

Although Suarez clearly endorses the intention/side-effect distinction as a basic moral principle, in this case he uses it not just to set restraints on the use of military force, but rather to justify fairly extreme methods of war, a line of argument that ominously foreshadowed the rhetorical justifications for strategic bombing in the twentieth century. 60 63 66

Suarez (2015, 965). Suarez (2015, 967). Suarez (2015, 968).

61 64

Suarez (2015, 966). Suarez (2015, 968).

62 65

Suarez (2015, 967). Suarez (2015, 968).

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Why did Vitoria expand the category of innocent civilians to include non-Westerners, and why did he and Suarez articulate certain jus in bello restraints? Some scholars argue that although Vitoria appears to accept a more enlightened and progressive understanding of the rights of nonChristians and indigenous peoples, his works are motivated by the desire to legitimate the colonial policies of Spain, especially with regard to the spreading of Christianity in the New World. As Kinsella argues, “Those who praise [the work of Vitoria and Grotius] fail to consider the ways in which the discourses of civilization and barbarism inform their writings.”67 But although Vitoria held the Native Americans in much lower regard than Europeans, and was therefore not motivated by a concern for universal human rights, he clearly viewed them as moral subjects worthy of some level of respect, even if highly unequal. For example, in response to the question of whether natives had territorial property rights, Vitoria argued that they “undoubtedly possessed” a “true dominion, both public and private, as any Christians. That is to say, they could not be robbed of their property either as private citizens or as princes, on the grounds that they were not true masters.”68 Vitoria clearly entertained a lack of equal respect for indigenous peoples. However, he did regard them as having what might be called a minimal moral subjectivity in the sense that he granted them certain rights. Furthermore, he did not solely predicate their right to civilian immunity on the discourse of civilization, at least not to the extent that Kinsella suggests. According to Kinsella, the granting of civilian immunity is “premised on conversion” to Christianity and to the superiority of European civilization.69 However, Vitoria’s discussion of the indigenous peoples subject to the Spanish empire shows that, in contrast to many of his contemporaries, he believed that indigenous peoples have certain rights apart from whether or not they accept the truth of Christianity. He believed that unless a native commits a moral wrong, it is unjust to dispossess them of their land. Granted, he did believe that indigenous tribes have an obligation to allow the Spanish to travel through their territory to speak the truth about Christianity, and he did argue that if they prevent missionaries from doing this, it is permissible to use force to stop them. Yet, this does not mean that he regarded unprovoked attacks on them as any less unjust. The reason why Vitoria recognized the subjectivity of indigenous peoples in the Americas was due to an emerging sense of empathic concern for the rights of natives. Though Vitoria clearly viewed Native

67

Kinsella (2011, 55).

68

Vitoria (1991, 250–251).

69

Kinsella (2011, 66).

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Americans as inferior to European Christians, the fact that he recognized their basic humanity suggests that sympathetic concern of some minimal sort influenced his interpretation of how the principle of distinction ought to be applied in practice. Moreover, the way in which Vitoria wrote about the issue of Spanish policies toward native peoples indicates that an emotional reaction to the killing of Indians shaped his moral reasoning. At the beginning of De Indis, Vitoria explains why it makes rational sense to reflect on the morality of Spanish policy toward the Americas. Some philosophers argued that since it is clear that Spanish policy is morally justified, there is no reason to consider it an open question. In response to this line of argument, Vitoria claims that the matter is neither so evidently unjust…that one may not question whether it is just, nor so evidently just that one may not wonder whether it might be unjust. It seems rather to have arguments on both sides. At first sight, it is true, we may readily suppose that, since the affair is in the hands of men both learned and good, everything has been conducted with rectitude and justice. But when we hear subsequently of bloody massacres and of innocent individuals pillaged of their possessions and dominions, there are grounds for doubting the justice of what has been done.70

Though this passage is intended to explain why it makes sense to consider the question of whether Spanish policy toward the Native Americans is morally justified, the last sentence indicates that he may have already implicitly made up his mind, for Vitoria describes the natives as “innocent individuals.” What is more, it was the “bloody massacres” of these individuals and the pillaging of “their possessions” that raised the question for Vitoria of whether or not Spanish colonial policies in the Americas were morally justified. Though it is not possible to get inside Vitoria’s head, it is plausible to interpret this passage as indicating that Vitoria’s perception of the requirements of natural law was informed by powerful moral sentiments. First, not only does the reference to “innocent individuals” indicate that Vitoria may have already made up his mind as to whether Spanish policy is justified, but it also suggests that his emotional response to the massacres strongly influenced his moral thinking. As I argued in Chapter 2, moral intuitions and emotions strongly inform the process of moral reasoning: People experience intuitive emotional reactions to moral problems and dilemmas, and these emotional reactions shape how they reason. In this case, Vitoria’s response to reports of “bloody massacres” in the Americas likely influenced how he thought about the natural rights

70

Vitoria (1991, 238).

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of indigenous peoples. Vitoria did defend the Spanish conquest of the Americas when it came to making sure that Christians had the right to freely spread their religion, but he was adamant that indigenous peoples have rights to their own territory. What is more, even though his treatises on the Native Americans and the laws of war are composed as “inquiries” into the question of whether Spanish policies are morally justified, the fact that he uses such emotional terminology, and the fact that he stipulates that indigenous peoples are “innocent individuals” whom the Spanish have deprived of “their possessions and dominions,” reveals that the answers to these questions were already intuitively clear to him. This suggests that it was empathic concern, not the discourse of civilization, that led Vitoria to recognize limitations on how indigenous peoples should be treated in armed conflict.71 Moreover, there are good reasons to believe that Vitoria’s understanding of natural law was influenced by emotional responses. First, along with many just war theorists, including Suarez, Vitoria distinguishes between intended and unintended killings of innocent people, and he claims that intended killings are strictly forbidden. Furthermore, his justification for permitting accidental killings is that if these were forbidden, then it would be “impossible to wage war against the guilty, thereby preventing the just side from fighting.”72 As I argued in Chapter 2, the belief that guilty individuals should be punished is backed up by powerful emotions, as is the idea that intentional killings are worse than accidental killings. Second, according to Vitoria, natural law does not just outlaw the killing of innocent people, but it also outlaws such practices as cannibalism and incest, and social psychologists have shown that cultural taboos against such practices are backed up by powerful emotional responses.73 Since emotional reactions likely influenced Vitoria’s judgment that incest and cannibalism violate natural law, it is plausible to suppose that emotional reactions to intentional mass killings in the Americas led Vitoria to conclude that such atrocities are morally wrong and that the principles of natural law should be applied more directly to the treatment of non-Christians. This does not mean that System 2-style reasoning played no role in how Vitoria articulated and applied the principles of natural law to the case of Spanish imperial policies in the Americas. Indeed, sifting through arguments to figure out which ones are the most compelling is clearly a System 2 process. My claim is that sympathetic concern for the victims of Spanish imperial atrocities led 71 72

For a similar argument with respect to the slavery and forced labor of the Spanish empire, see Crawford (2002). 73 Vitoria (1991, 315–316). Haidt (2001).

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Vitoria to engage in a process of reasoned reflection that helped to chip away at the idea that native peoples have no rights worth protecting.74 From Natural Law to the Law of Nations: Law and Sentiment in the Works of Grotius and Vattel Composed in 1625 around the time of the Thirty Years’ War, Hugo Grotius’s On the Law of War and Peace is one of the most significant texts in the history of public international law. Not only does it set forth a powerful precursor to Enlightenment thinking on the nature of the just war, but it was explicitly devised as a systematic analysis of international law, both in terms of what we now call positive international law (the customary practices and treaties of peoples) and the law of nature, which is discernible through the exercise of reason. In the years leading up to its publication Grotius witnessed firsthand the untoward consequences of war – a situation wherein “men rush to arms for slight causes, or no cause at all, and that when arms have…been taken up there is no longer any respect for law, divine or human.”75On the Law of War and Peace was written with the express purpose of identifying the limits of permissibility and impermissibility in war – to discern a middle ground between the extreme views that “nothing is allowable [in war], or that everything is.”76 Following many of his contemporaries, Grotius argued that there were four basic types of law: divine law, municipal or civil law, the law of nations, and natural law. For Grotius, the law of nations is comprised of those norms and conventions that modern legal theorists define as international law, both in terms of customary international law and in terms of treaty law. In his view, the law of nations, like municipal or civil law, rests upon the “common consent” of peoples.77 Natural law, however, rests upon “the principles of [human] nature,”78 and because Grotius believed that human beings are naturally reasonable and sociable he thinks that the principles of natural law can be discerned by interrogating the judgments of fully rational, sociable individuals. That is, we can determine the principles of right by considering how rational, sociable individuals would react to a particular situation. If rational, sociable individuals deem a particular practice to be unjust, then it is inconsistent with the 74

75 78

As Crawford argues, Bartolomé de las Casas along with Vitoria “inadvertently planted the seeds of colonialism’s denormalization. Many of the arguments used in the sixteenth century to limit the ill treatment of Indians were to reappear 200 years later in debates about modifying and ending African slavery,” (2002, 158). 76 77 Grotius (1925, 20). Grotius (1925, 20). Grotius (1925, 24, 44). Grotius (1925, 23).

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law of nature.79 For Grotius, political violence is consistent with natural law just in case it does not violate the rights of others: In the first principles of nature there is nothing which is opposed to war; rather, all points are in its favour. The end and aim of war being the preservation of life and limb, and the keeping or acquiring of things useful to life, war is in perfect accord with those first principles of nature. If in order to achieve these ends it is necessary to use force, no inconsistency with the first principles of nature is involved, since nature has given…each animal strength…for self-defense and self-assistance… Right reason, moreover, and the nature of society, which must be studied in the second place and are of even greater importance, do not prohibit all use of force, but only that use of force which is in conflict with society, that is which attempts to take away the rights of another. For society has in view of this object, that through community of resource and effort each individual be safeguarded in the possession of what belongs to him… It is not, then, contrary to the nature of society to look out for oneself and advance one’s own interests, provided the rights of others are not infringed; and consequently the use of force which does not violate the rights of others is not unjust.80

Consistent with these considerations, Grotius argues that there are three main causes for which the right to use military force is justified: (1) selfdefense; (2) recovering property; and (3) punishment. In his view, just wars of self-defense only include those that respond to threats that are immediate and certain: Preventive wars designed to weaken a neighboring state are “abhorrent to every principle of equity. Human life exists under such conditions that complete security is never guaranteed…us.”81 With respect the laws of war, Grotius’s views are more complicated. Grotius notes that the contemporary law of nations permits states and their soldiers to wage war on a mass scale. Indeed, he argues that soldiers not only have the right to kill other soldiers but that this right of doing what is permissible has a wide application. In the first place it extends not only to those who actually bear arms, or are subjects of him that stirs up the war, but in addition to all persons who are in the enemy’s territory …. The reason is that injury may be feared from such persons also; and this is sufficient, in a prolonged and general war, to give rise to the right which we are discussing.82

As Grotius points out, however, the claim that soldiers have a legal right to kill “all persons who” reside in enemy lands does not imply that it is morally right for them to do so, all things considered. Instead, it implies that under the positive law of nations (which derives from the consent of 79 82

Grotius (1925, 13). Grotius (1925, 646).

80

Grotius (1925, 52–54).

81

Grotius (1925, 184).

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sovereign states) they are not technically liable for civilian casualties. However, considerations of justice imply that there are moral restrictions on what ought to be done in the context of warfare. Grotius quotes Cicero as follows: “There are certain duties which must be performed even toward those from whom you have received…injury. There is in fact a limit to vengeance and to punishment.”83 What Grotius seems to be saying is that even if the customary law of nations do not expressly forbid civilian victimization, the law of nature does not permit states to target civilians.84 In sketching out his account of who may be killed in war, Grotius relies on the intention/side-effect distinction: Now a person is killed either intentionally or unintentionally. No one can justly be killed intentionally, except as a just penalty or in case we are able in no other way to protect our life and property …. However that punishment may be just, it is necessary that he who is killed shall himself have done wrong, and in a manner punishable with the penalty of death on the decision of a fair judge.85

Later, he argues that people cannot be permissibly killed unless they act with the intent to do evil to someone else, and here Grotius uses Aristotle’s threefold distinction between different types of actions: misfortunes, faults, and wrongs. For Grotius, it is only permissible to kill someone if they have committed a wrongful act, not if they have harmed someone on accident. On his interpretation of Aristotle, “‘misfortunes are things which could not have been foreseen, and are not committed with evil intent; faults, things which could have been foreseen, yet are not done with evil intent; wrongs, things done purposely and with evil intent.’”86 Grotius’s views regarding the permissibility and impermissibility of killing in war are consistent with the moral grammar sketched out in Part I: He makes a strong distinction between intentional and unintentional harms, and he believes that it is morally wrong to kill people who have done no wrong. Indeed, similar to Vitoria he even argues that in unlawful wars, i.e., wars that are undertaken without a just cause, “all acts which arise therefrom are unjust from the point of view of moral injustice.”87 He also argues that considerations of mercy imply that just soldiers should take precautions to limit the harm and suffering imposed on the civilian population:

83 84

85

Grotius (1925, 722). For a useful discussion of Grotius’s account of the relationship between natural law and the law of nations, specifically with respect to his view of ‘permissions’ in the laws of war, see Forde (1998). 86 87 Grotius (1925, 723). Grotius (1925, 727). Grotius (1925, 719).

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[W]ith regard to the destruction of those who are killed by accident and without intent, we must hold fast to the principle … we mentioned above. 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.88

From this general moral principle Grotius derives conclusions about the categories of individuals who are immune from attack in war. Quoting Seneca, he argues that children should be “excused” on account of their age and that women should be excused on account of their sex.89 Children are considered innocent because they are too young to participate in battle, and women are considered innocent because their sex “exempts them from the dangers of war.”90 However, Grotius says that this general principle “holds good … unless women have committed a crime which ought to be punished in a special manner, or unless they take the place of men,” by which he seems to mean unless they participate in war.91 From this passage, it appears that committing a crime or posing a threat to the life of another is the key factor that separates the soldier from the civilian – a claim that is consistent with the moral grammar sketched in Part I. But even though Grotius’s view is consistent with the moral grammar I sketched out in Part I, why does Grotius mark the distinction between combatant and noncombatant in this way? What evidence is there that emotional responses shaped his thinking? Although it is impossible to know for sure, the textual evidence suggests that cultural norms such as gender or civilizational discourse did not determine (though they certainly influenced) Grotius’s views of the permissibility of killing in war. Grotius certainly had a misogynistic view of women, and he believed that they should be subservient to men, so it is not hard to understand why he thought that sexual differences generally exempt women “from the dangers of war.”92 What is more, the idea of civilization does affect Grotius’s approach to the laws of war, especially his view that the laws of war safeguard European nations from descending into barbarism.93 Yet, the fact that Grotius explicitly claims that immunity is based on innocence from committing a crime and not posing an unjustified threat to other people suggests that even though the discourses of civilization and gender influenced how Grotius applies the principle of distinction, the principle itself rests on something else. Indeed, Grotius’s views on the rule of proportionality shed some light on the kinds of motivations that 88 90 93

89 Grotius (1925, 733–734), emphasis added. Grotius (1925, 734). 91 92 Grotius (1925, 735–736). Grotius (1925, 735). Grotius (1925, 735–736). Kinsella (2011, 71).

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led him to promulgate clear safeguards for civilians in war. As the passage quoted earlier indicates, Grotius believed that it was the “bidding of mercy, if not of justice” to refrain from attacks that kill noncombatants unless the military reasons in favor of them are sufficiently “weighty and will affect the safety of many.”94 As the work of Josh Greene shows,95 moral emotions are often in tension with utilitarian reasoning. To influence our judgments, utilitarian considerations often have to overcome emotional responses, and when they do, they often have to greatly outweigh our intuitive biases. In this case, in order for collateral damage to be justified, the expected military gains have to be of sufficient moral weight, indicating that for Grotius there may have been a basic emotional concern with protecting the lives of the innocent. This concern needed to be greatly outweighed in order to be overridden. What is more, the rationale that Grotius sets out for writing On the Law of War and Peace indicate that moral emotions such as compassion and shame influenced his reasoning. In his initial justification for writing the book, Grotius says that “throughout the Christian world, [he] observed a lack of restraint in relation to war, such as even barbarous races should be ashamed of … it is as if, in accordance with a general decree, frenzy had openly been let loose for the committing of all crimes.”96 This passage suggests that one motivation for composing On the Law of War and Peace was a sense of shame at the utter ruthlessness and the lack of moral restraints that Grotius observed with the use of military force in European politics. Moreover, in Book III of On the Law of War and Peace – i.e., the section devoted to jus in bello norms – Grotius initially discusses what the law of nations currently stipulates and what it ought to stipulate. In Chapter 4 of Book III, for example, he notes that the law of nations at the time currently permitted states to kill civilians with impunity, by which he means without the credible threat of punishment. Here, he claims that states even had the right to slaughter women and children with impunity. Yet, in Chapter 10 he argues that even if customary law permits states to kill with impunity, this does not imply that such conduct is right: I must retrace my steps, and must deprive those who wage war of nearly all the privileges which I seemed to grant, yet did not grant them. For when I first set out to explain this part of the law of nations I bore witness that many things are said to be ‘lawful’ or ‘permissible’ for the reason that they are done with impunity, in part also because co-active tribunals lend to them their authority; things which … either deviate from the rule of right …, or at any rate may be omitted on higher grounds and with greater praise among good men. In the Trojan Women of 94

Grotius (1925, 734).

95

Greene (2013).

96

Grotius (1925, 20).

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Seneca, when Pyrrhus says: “no law the captive spares, nor punishment restrains,” Agamemnon…answer[s]: “what law permits, this sense of shame forbids to do.” In this passage the sense of shame signifies not so much a regard for men and reputation as a regard for what is just and good, or at any rate for that which is more just and better.97

Using a classic work of literature to articulate his views, in this passage Grotius suggests that one motivation for developing stricter jus in bello norms is the sense of shame that attends unrestrained acts of violence. This is not a sense of shame that is based on considerations of honor, but rather it is one that is based on considerations of justice. There is further evidence for the role of emotions in Grotius’s discussion of the individuals who should be spared under the principle of distinction: In the first place, with regard to children we have the judgment of those peoples and ages over which moral right has exerted the greatest influence. ‘We have arms,’ says Camillus in Livy, ‘not against that age which is spared even when cities are taken, but against men in arms.’ He adds that this has a place among the laws of war, that is the natural laws. In dealing with the same incident Plutarch says: ‘among good men even war has certain laws.’ Note here the phrase ‘among good men,’ that you may distinguish this law from the law which is based on custom and impunity. Thus Florus says that a certain course of action was inevitable, if honor was not to be violated. In another passage of Livy we read: ‘an age from which even enraged enemies would withhold their hands,’ in still another, ‘their cruel rage led them to slay even the infants…’ Valerius Maximus calls the cruelty of Munatius Flaccus against infants and women ferocious, and intolerable even to hear about. In Diodorus it is related that the Carthaginians at Selinus slew old men, women, and children, ‘uninfluenced by humane feelings’; elsewhere he calls this conduct ‘cruelty.’98

Although the evidence is only indirect, this passage indicates that Grotius thinks it fitting for good soldiers to be compassionate and merciful to noncombatants, to be influenced by humane feelings. More generally, the kind of language that Grotius uses to articulate the laws of war, and the motives he had for so articulating them, indicate that moral sentiments such as shame and compassion, on the one hand, and concerns over intentional killing, on the other, shaped how he thought about the ethics of killing in war. So even though Grotius articulated a position on the nature of the just war that was far more secular than earlier thinkers, one thing that survived the secularization of Western just war doctrine was the idea that innocent people should not be intentionally killed. 97 98

Grotius (1925, 716), emphasis added. Grotius (1925, 735–736), emphasis added.

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The main difference between the Christian and the secular versions of just war theory had to do with the role that divine authority plays in sanctioning the use of military force – particularly with respect to jus ad bellum principles. While theorists such as Augustine and Aquinas believed that God could, and in some cases directly did, command his followers to wage wars against others, later theorists argued that religious considerations play less of a role in justifying the use of military force. According to Vitoria and Suarez, for example, religious differences do not justify Christians in waging war against their enemies. Similarly, when one considers how seventeenth century international jurisprudence and political philosophy compares to modern international law, one stark difference emerges: the decreasing relevance of moral considerations, i.e., natural law, and an increasing focus on conventional international law, i.e., customary law, judicial decisions, and international treaties. For example, although there were explicit attempts by non-Western countries such as North Vietnam to insert the idea of moral justice into international humanitarian law during the negotiations over the Additional Protocols to the Geneva Conventions, these efforts were largely in vain. Echoing an argument made by Emmerich Vattel in his famous treatise The Law of Nations, opponents of this view argued that since there is no court that can determine what precisely moral justice requires, international humanitarian law should not rest on moral considerations, but rather it should rest on conventional norms and agreements. As Vattel might have argued, “the strictness of the necessary law of nature” should be left “to the conscience of sovereigns.”99 Although states “are never allowed to deviate from” the necessary law of nature, “we must necessarily have recourse to rules that shall be more certain and easy in the application,” that is, the voluntary law of nations.100 For Vattel, the law of nature still forms the basis of the obligations that states have toward each other. However, as Charles Fenwick explains, “Since there is no supreme authority capable of deciding, as between nation and nation, upon the application of the natural law to specific cases in which there is a dispute as to its application, it follows that … it is necessary to admit some relaxation in the application to nations of the law of nature.”101 What Vattel calls the voluntary law of nations “consist[s]…in the rigorous application of the law of nature to nations by reason of the fact that there is no acknowledged interpreter of it.”102 Vattel regards it as a “hybrid of positive and natural law.”103 Combined 99 102

Vattel (2008, 590). Fenwick (1913, 401).

100

101 Vattel (2008, 590). Fenwick (1913, 401). Kalmanowitz (2018, 224).

103

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with custom and treaty law, voluntary law helped constitute the positive law of nations: For they all proceed from the will of Nations; the Voluntary from their presumed consent, the Conventional from an express consent, and the Customary from tacit consent.104

With regard to war, the first rule of the voluntary law of nations is that “regular war, as to its effects, is to be accounted just on both sides.”105 By implication, “whatever is permitted to the one in virtue of the state of war, is also permitted to the other.”106 Although it may seem as if Vattel is giving up on the idea of justice, notice that he merely says that regular wars are to be accounted just on both sides. Sovereigns who take up arms in an unjust war, are no less “guilty of violating the sacred law of nature.”107 However, Vattel’s reason for deemphasizing the role of natural justice is to ensure that combatants (and noncombatants) enjoy an equality of rights in war. As a result, Vattel believed that there should be no distinction between just and unjust wars when it comes to applying the laws of warfare. With respect to civilians, states are always required to follow the laws of warfare regardless of whether they have justice on their side. For Vattel, as for most international lawyers, the principle of distinction is based on whether someone actively participates in armed hostilities: Women, children, feeble old men, and sick persons, come under the description of enemies…; and we have certain rights over them, inasmuch as they belong to the nation with whom we are at war, and as, between nation and nation, all rights and pretensions affect the body of society, together with all its members (Book II §§81, 82, 344). But these are enemies who make no resistance; and consequently we have no right to maltreat their persons, or use any violence against them, much less to take away their lives.108

Although the discourse of gender clearly influenced the way in which Vattel articulated the notion of civilian immunity, participation in armed hostilities forms the basis of the rule of distinction: An individual can be deliberately targeted only if they make resistance against soldiers. Why does Vattel make such a distinction between soldiers and civilians? When discussing the rationale for observing legal restraints toward POWs, i.e., those who have laid down their arms and are therefore noncombatants in some sense of the term, the reasons are evident. Vattel believes that it is morally wrong and contrary to the law of nations to kill or torture POWs because they no longer present a mortal threat to 104 107

Vattel (2008, 78). Vattel (2008, 592).

105

Vattel (2008, 591). Vattel (2008, 549).

108

106

Vattel (2008, 591).

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others. Furthermore, the kind of language that he uses to articulate protections for POWs indicate that moral sentiments played a strong role in his thinking: As soon as your enemy has laid down his arms and surrendered his person, you have no longer any right over his life (§140), unless he should give you such right by some new attempt, or had before committed against you a crime deserving death (§141).109 Prisoners may be secured; and, for this purpose they may be put into confinement, and even fettered, if there be reason to apprehend that they will rise on their captors, or make their escape. But they are not to be treated harshly, unless personally guilty of some crime against him who has them in his power. In this case he is at liberty to punish them: otherwise he should remember that they are men, and unfortunate. A man of exalted soul no longer feels any emotions but those of compassion towards a conquered enemy who has submitted to his arms. Let us, in this particular, bestow on the European nations the praise to which they are justly entitled. Prisoners of war are seldom ill-treated among them. We extol the English and French; we feel our bosoms glow with love for them, when we hear the accounts of the treatment which prisoners of war, on both sides, have experienced from those generous nations.110

As the italicized sentences in this passage indicate, moral sentiments of compassion and empathic concern led Vattel to set forth protections for POWs. Even though POWs are distinct from civilians in international law, it is plausible to conclude that the same kinds of considerations that led Vattel to articulate protections for POWs also informed his views on civilian immunity. Even if we cannot be certain as to whether moral emotions influenced how Vattel himself thought about the ethics of killing in war, his discussion indicates that his concerns for POWs clearly evoked strong emotions. In the canon of international jurisprudence, Vattel is sometimes viewed as having “prepared the ground for the decisive shift towards positivism that” would come “to dominate” “international legal thought for the next century-and-a-half.”111 But although Vattel’s “emphasis on the will and consent of states does indeed point in a positivist direction,” his rationale for focusing on the voluntary law of nations was motivated by strong moral considerations.112 Indeed, the reason why Vattel felt that the strictness of the law of nature should be left to the conscience of sovereigns is the fact that the international legal system is anarchic, and thus there is no judge above states to determine what justice requires. Permitting states to focus strictly on the necessary law of nature would be a recipe for disaster, for each state would maintain “that they have justice on their own side,” and that their enemies lack legal rights.113 Emphasizing 109 111

Vattel (2008, 552). Hurrell (1996, 234).

110

Vattel (2008, 552–553), emphasis added. 113 Hurrell (1996, 238). Vattel (2008, 589).

112

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the voluntary law of nations helps to keep this untoward consequence of anarchy in check. This makes particular sense in the case of POWs. If we permitted states to focus only on considerations of justice, they might sometimes take vengeance on soldiers who are merely following their political obligations by participating in war. Regardless of whether soldiers fighting in an unjust war are guilty of committing a moral wrong, Vattel believed that their rights should be respected through the voluntary law of nations – an idea that is equally applicable to civilians who by dint of circumstance happen to live in a society that is waging an unjust war. Conclusion The history of just war theorizing in the West reveals three key paths of development. First, although the Christian just war tradition originated with Augustine’s defense of the claim that Christians can legitimately participate in war and his promulgation of core jus ad bellum principles, the Peace of God movement was critical to the early development of jus in bello principles, particularly the rule that civilians cannot be deliberately killed in war. Secondly, although early just war theorizing was explicitly based on religious motivations, just war thinking became increasingly secularized during the era of European imperialism, the Protestant Reformation, and the Enlightenment, both in terms of jus ad bellum principles regarding when states can legally wage wars and in terms of jus in bello principles that govern what states and soldiers can do in the context of warfare. The secularization of just war doctrine was also reflected in subtle changes in how major philosophers understood the concept of natural law. For Aquinas, Vitoria, and Suarez, natural law was viewed as something of a connection point between the material world and the divine. It is the law that God writes into the hearts of humankind. But for natural law theorists such as Grotius, the law of nature is something that people know through the exercise of reason, and it requires us to act in certain ways regardless of whether God exists. Third, over the course of history Western just war theory progressively evolved into the positive law of nations that currently governs international politics. While the second track of development reveals an increasing differentiation between the material world and the divine, the third track manifests a differentiation between morality and positive law. Through each of these developments, moral emotions concerning the protection of civilians have influenced the emergence and trajectory of the jus in bello laws of armed conflict. In response to the deterioration of public order in Western Europe, the Peace of God movement and the church councils that it organized ushered in rules that were designed to

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protect civilians in armed conflicts, and as I showed earlier the participants in these councils used emotional moral arguments to justify their claims. Furthermore, as my analysis of the major treatises of Western just war theory showed, the idea that innocent people should be protected from intentional killing expanded greatly during the age of the expansion of European empires, the Protestant Reformations, and the Enlightenment, from Westerners to non-Westerners. In addition, one key reason why Enlightenment theorists such as Vattel believed that the strictness of natural law should be left up to the conscience of sovereigns was to make sure that regardless of the justice of the causes for which states fight, the laws of war are rigorously implemented on both sides. This was done to ensure that even in the midst of warfare, humanitarian ethical considerations would be observed to the fullest possible extent. My analysis of the language Vitoria, Grotius, and Vattel used to justify restrictions on the targeting of civilians indicates that emotional moral beliefs regarding intentional killing shaped how they thought about the use of military force. As noted, this does not mean that System 2 style reasoning played no role in how Western just war theorists articulated jus in bello restraints. Indeed, it clearly did. However, my claim is that empathy motivated just war theorists to argue for stronger jus in bello norms for protecting noncombatants. For the most part, European just war theory and positive international law ushered in moral and legal developments that imposed more restrictive limits on how states can prosecute their wars. Yet, as I illustrate in the following chapters, the moral intuitions that underwrite the contemporary laws of armed conflict also generate permissive constraints on what states and their soldiers can do in war, a development that was foreshadowed in the just war theory of Francisco Suarez. As Suarez explains, in most armed conflict situations it is almost certain that innocent people will be found among the guilty. But as long as states have a justified cause for war, and as long as they do not intentionally kill civilians, they can use fairly extreme methods of war that will “necessarily involve the death of innocent persons,” including “the burning of cities.”114 As I show in the next two chapters, these permissive effects of just war thinking not only shaped the development of the pre-World War II laws of warfare but they also influenced the Allied justifications for strategic bombing during and after World War II.

114

Suarez (2015, 968).

Part III

Moral Sentiments and the Development of International Humanitarian Law

6

Humanizing Hell The Hague Peace Conferences and the Second World War, 1899–1945

On February 18, 1945, Associated Press correspondent Howard Cowan published one of the first news reports on the firebombing of Dresden – a strategic air attack that was designed to aid the Soviet ground offensive on the Eastern Front. According to Cowan’s report, “The Allied air Commanders have made the long-awaited decision to adopt deliberate terror bombing of German population centres as a ruthless expedient to hastening Hitler’s doom.”1 In a follow-up editorial on February 19, the editors of the Washington Star, which had published Cowan’s original report, speculated that If this is the case – if, in the absence of compelling military necessity, our bombers are being sent out deliberately and primarily to kill and terrorize the civilian man and the woman and children of Germany – we cannot complain if history indicts us as co-defendants with the Luftwaffe commanders who broke the ground for this dismaying product of twentieth century civilization.2

Such public speculation that the Allies had adopted deliberate terror bombing as a method of choice led the US Army Air Forces to release a statement during a press conference that would set the “facts” straight. In this press conference, the US Army Air Forces spokesman claimed that Cowan’s report “was founded on a grave misunderstanding … [T]he Army Air Forces have not decided to adopt deliberate terror bombing. There is no change in…policy. Our attacks have always been directed against military objectives, and they will continue to be so directed.”3 Regardless of the intent of the campaign, the bombing of Dresden

1 2

3

Quoted in Biddle (2008, 438). “Terror Bombing,” Monday, February 19, 1945. Record Group (RG) 18, General Subject Files (GSF), 1942–1946, Box 30. US National Archives, College Park, Maryland (USNA); Biddle (2008, 440). Press conference notes (no date is given). Record Group (RG) 18, General Subject Files (GSF), 1942-1946, Box 30, US National Archives, College Park, Maryland (USNA). According to Biddle (2002, 259) this press conference was held on February 21, 1945.

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created a firestorm that killed approximately twenty-five thousand civilians and left the city covered in ashes that remain to this day. The “grave misunderstanding” to which the Army Air Force spokesman referred was found to be based on a misinterpretation of comments that Royal Air Force (RAF) Air Commodore C. M. Grierson had made at an earlier press conference in Paris regarding the bombing of German cities. When Grierson was asked whether the “big results” that the Allies expected to derive from the air war had to do with attacks on the German military or its economic system, he responded that they would derive from both: “I think the oil and communications attacks must affect the military situation very severely, very greatly indeed, also, which I had in the back of my mind was that the interpretation of further bombing attacks on German cities which are incidental and complementary to the communications attacks must have an effect on her internal economic system and what morale there is left to have any effect on.”4 According to the Army Air Forces spokesman, the italicized words were one source of the “grave misunderstanding” in Cowan’s report, since they made it seem as if the Allies had adopted a new policy of deliberate terror bombing: “You will notice he said ‘incidental and complementary’ to the communications attack. I think plainly that what he meant was ‘effects’ incidental and complementary, but it could certainly have been taken to mean ‘attacks,’ which we were now going to make.”5 In any case, the spokesman concluded the press conference by trying to reassure skeptics that the United States has “never done deliberate terror bombing … we are not doing it now … we will not do it.”6 This kind of attempt to explain and rhetorically justify strategic airstrikes was ubiquitous during World War II, not just for the United States but for other countries as well. In the fall of 1943, for example, the British Air Ministry tried to justify its strategic bombing policies to the public by claiming that the RAF “was [only] engaged in pinpoint bombing of particular factories.”7 The chief of RAF Bomber Command, Arthur Harris, vehemently rejected this claim, claiming that the British should be more open about the fact that the RAF was attempting to obliterate German cities “and their inhabitants.”8 According to Harris, the Air Ministry should have defended its bombing policy in something like the following terms: “(a) the aim of the Combined Bomber Offensive … is the destruction of German cities, the killing of German

4 5 6 7

Press conference notes (no date is given), emphasis added. Press conference notes (no date is given). Press conference notes (no date is given). For a useful discussion of the myth and reality surrounding the Dresden bombing, see Biddle (2008). 8 Overy (2005, 290). Quoted in Overy (2005, 290).

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workers, and the disruption of civilized community life throughout Germany; (b) it should be emphasized that the destruction of houses, public utilities, transport and lives; the creation of a refugee problem on an unprecedented scale; and the breakdown of morale both at home and at the battle fronts by fear of extended and intensified bombing, are accepted and intended aims of bombing policy. They are not by-products of attempts to hit factories.”9 But this statement was far “too candid,” and “Harris was told that” the “devastation” should be “presented” as “‘the inevitable accompaniment of an all-out attack on the enemy’s means and capacity to wage war.’”10 The forthrightness of Harris’s argument is so striking, in part because it is so exceptional, for in most cases, even during World War II, military personnel routinely justify civilian deaths as unintended side effects of otherwise justifiable military tactics. Though a cynic might argue that such moral justifications are mere rhetorical stratagems designed to evade public criticism, in this chapter I argue that they also reflect the permissive effects of the laws of war as they existed prior to World War II, particularly with respect to aerial bombardment. Using the laws of aerial bombing as a case study, in this chapter I examine two seemingly contradictory lines of development in the laws of war. First, since at least the American Civil War, steady developments in the destructiveness of industrialized warfare generated increasing pressure to create stronger laws for preventing wartime atrocities. Not only did the total warfare tactics that would first gain notoriety with General Sherman’s infamous March to the Sea campaign bring the battlefield into closer contact with the civilian population, but newer technologies such as airplanes made it possible to directly hit targets well behind enemy lines. The increasing destructiveness of modern warfare, along with the development of transnational advocacy networks such as the International Committee of the Red Cross (ICRC) facilitated the creation of new norms for protecting the victims of war. The Hague Conventions of 1899 and 1907 were one important result of these efforts. Second, though the Hague Regulations11 were designed with the ostensible purpose of humanizing warfare, they were signed at the precipice of a century in human history that was unspeakably violent. World War II alone caused 55,000,000 deaths,12 several hundred thousand of which perished in the bombing of London, Hamburg, Tokyo, Dresden, Hiroshima, and Nagasaki. Although one might argue that these two 9 11 12

10 Quoted in Overy (2005, 290). Quoted in Overy (2005, 290). In this chapter I use the term “Hague Regulations” to refer to the Hague Conventions of 1899 and 1907, as well as the 1923 Hague Draft Rules on Air Warfare. Pinker (2011, 195).

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developmental paths reflect poorly on the behavioral effectiveness of the laws of war, in this chapter I argue that a more nuanced evaluation of the twentieth century history of the laws of war suggests a different interpretation. In particular, I contend that the moral beliefs and emotions that informed the creation of the Hague Regulations actually opened rhetorical space for the justification of wartime practices, specifically strategic bombing, that left civilians exposed to high risks. Born of a desire to humanize warfare, the Hague Regulations had permissive loopholes that enabled states to justify military tactics that put pressure on the moral distinction between limited and total warfare. To defend this claim, I examine the history of the laws of war in the late nineteenth and early twentieth centuries, focusing specifically on three critical junctures: (1) the development of the laws of land warfare at the 1899 Hague Peace Conference; (2) the development of the idea of lawful military targets during the negotiations over the laws of naval warfare at the 1907 Hague Peace Conference; and (3) the negotiations over the 1923 Hague Rules on Air Warfare. In each section, I briefly outline the historical background of the respective conferences, and then I examine how states negotiated legal principles on targeting policy for land, naval, and aerial bombing. In each case, I look at how states used emotionally salient moral rules that emphasize intentions to create permissive rules of war – specifically with respect to artillery bombing, naval warfare, and the dropping of projectiles from balloons or (later) planes. I show that not only did states use the distinction between intended and unintended killing to construct the notion of lawful military targets, but moreover they used it to ensure that air warfare would not be permanently outlawed by the Hague Regulations. Finally, I briefly analyze the effect that international law had on aerial bombing practices in World War II. More work is needed to fully understand the ways in which the laws of war shaped Allied bombing policy during the war, but the evidence that I review here helps elucidate the extent to which moral and legal considerations influenced how states chose targets and how they justified their policies. With respect to the central argument that I make in this book, this chapter, and the one that follows, shows that emotional arguments shaped the restrictive and permissive restraints of IHL. The Hague Peace Conference of 1899: Total Warfare and the Laws of Armed Conflict In its modern guise, the doctrine of total warfare is based almost exclusively on strategical considerations. At its extreme, it involves the deliberate targeting of enemy civilians, the large-scale destruction of civilian

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property, and the scorched-earth tactics used widely by Union generals such as William Tecumseh Sherman in his infamous March to the Sea campaign during the Civil War. In general, states adopt total warfare tactics to force their enemies to capitulate – either by raising the current costs of fighting or by increasing the perceived risks of future damage.13 For example in the fall of 1864, General Grant commanded General Philip Sheridan to turn the Shenandoah Valley “into a ‘barren waste,’” with the ostensible purpose of denying “Confederate armies a major source of supplies.”14 For most people, the doctrine of total warfare is about military efficiency, not ethics. Yet, from its inception, the doctrine of total warfare has had strong moral undertones – specifically the notion that unrestrained violence is the most effective way to bring wars to a speedy conclusion. Making civilians feel what Sherman called “the hard hand of war” was seen as not only a way of denying vital resources to enemy forces but also as a way of breaking civilian morale. By breaking civilian morale, states could make sure that wars were brought to a timely end, thus reducing their overall costs. The underlying logic is similar to the idea of mutually assured destruction: Exposing the civilian population to high risks makes wars costlier, and thereby quicker and less likely. The Hague Regulations arose in reaction to this view. The 1868 St. Petersburg Declaration inaugurated the idea that the means of injuring the enemy are not unlimited and that armies are not permitted to employ weapons that cause unnecessary suffering, and the 1874 Brussels Declaration explicitly forbade the “destruction or seizure of the enemy’s property” if such a tactic is “not imperatively demanded by the necessity of war.”15 In addition, General Orders No. 100, which were the first uniform code of ethics for armed forces in the field during the Civil War, stipulated that “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.”16 But the St. Petersburg Declaration and the Brussels Declaration were merely declaratory, and as a result they did not reflect positive international law. The Hague Regulations were designed to take these vague customary laws into the domain of codified international treaty law. As with many diplomatic conferences, the Hague Peace Conference of 1899 arose through a mixture of high-minded idealism and political intrigue. Proposed initially by Czar Nicholas II of Russia, the conference was intended to control the production of arms. At the time, the Russians 13 15 16

14 Pape (1990, 110–121). Janda (1995, 17). ICRC website: www.icrc.org/ihl/INTRO/135. The Avalon Project: http://avalon.law.yale.edu/19th_century/lieber.asp.

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feared that increases in military expenditures to keep up with arms production in Austria would threaten the financial stability of their government. In an effort to cloak the strategic interests of his government in a shroud of flowery language that emphasized humanitarianism and world peace,17 Czar Nicholas II circulated a letter to foreign diplomats in St. Petersburg to request their cooperation in convening an international conference. On the morning of August 24, 1898, Russian Foreign Minister Count Muraviev distributed the Czar’s letter, which claimed that “The imperial government believes that the present moment would be very favorable for seeking, by means of international discussion, the most effective means of ensuring to all peoples the benefits of a real and lasting peace, and above all of limiting the progressive development of existing armaments.”18 In a second rescript, Muraviev suggested that the parties to the conference should address three basic categories of issues: (1) the reduction of armaments; (2) the development of the outlines of an international arbitral body for peacefully adjudicating international disputes; and (3) the development and codification of the laws and customs of war. With respect to (3), Muraviev suggested that states discuss limiting the usage of exploding projectiles from balloons “or by similar means,” and he also proposed discussing revisions to the Brussels Declaration of 1874.19 Ironically, even though Russia’s motivation for organizing the 1899 conference was to control the arms race, it was ultimately more successful in codifying and updating the laws of warfare.20 Prior to the Hague Peace Conference, there had been few successful efforts to codify rules of conduct for war. Indeed, before the American Civil War (1861–1865), no state had a uniform code of conduct for armed forces in the field, and as John Witt suggests, it was the Civil War itself that revealed important gaps in how existing customary norms governed the use of force, especially those that dealt with POWs, civilians, and naval operations. The Lincoln administration supported the creation of a uniform military code, General Orders No. 100, as a way of addressing the legal issues it faced in fighting the Confederacy: It provided a useful way of justifying military tactics deemed necessary for victory.21 The Lieber Code, so named in honor of its author, the Columbia College law professor Francis Lieber, contributed to the development of the modern law of warfare via its impact on the legal scholars who took part in the negotiations over the 1874 Brussels 17 18 20

Ford (1936, 381–382). For more on the background to the 1899 Hague Peace Conference, see Best (1999) and Davis (1962, 1976). 19 Quoted in Scott (1917, 1). Quoted in Scott (1917, 3). 21 Roberts (1994, 121). Witt (2013).

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Declaration, which was, in turn, the basis for the negotiations over the laws and customs of war on land in 1899. Regardless of whether the 1899 Hague Conventions failed to stem the arms race, they made three principal advances in codifying the laws and customs of war. First, they led to the first formulation of the Martens Clause, which is generally seen as a seminal element of modern IHL. Second, they led to a ban on hollow-tipped bullets and a declaration against the use of asphyxiating gases, along with a temporary ban on balloon-dropped projectiles. Third, they led to the first codification of legal norms on artillery bombardment. Since the goal of this chapter is to show how moral emotions and beliefs affected the creation of rules regarding the protection of civilians, in what follows I examine how emotional arguments shaped the creation of restrictive and permissive laws of warfare. The Martens Clause, Civilian Immunity, and the Law of Military Occupations 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 the public conscience.22

Since its initial articulation at the first Hague Peace Conference, the Martens Clause (quoted above) has come to be regarded as a foundational element of IHL. Not only has it been rephrased in other important treaties, e.g., the Geneva Conventions, but it has also had a significant influence on the application of international law to particular cases – most prominently the Nuremburg trials that prosecuted Nazi war criminals after World War II.23 As implied in the quote referenced above, the Martens Clause was designed to extend legal protections to the civilian population and to armed forces in cases that do not clearly fall within the purview of the regulations set forth in the Hague Conventions on the Law and Customs of War. Recognizing the intrinsic difficulty of creating rules that cover all possible contingencies that may arise in the brutal midst of war, the delegates to the 1899 conference adopted the clause to set down restraints on the arbitrary use of military force – thereby rejecting the principle that “all that is not prohibited [in war] is allowed.”24 22 23

The Avalon Project: http://avalon.law.yale.edu/19th_century/hague02.asp. 24 Meron (2000, 79–80). Pustagarov (1999, 131).

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The Martens Clause has several important implications for the principle of civilian immunity. Hague Convention II on the Law and Customs of War on Land does not have a clear articulation of the principle of civilian immunity, but it does have several articles related to wanton desolation of enemy property and respect for individual lives in occupied territories. For example, Article 23 holds that “it is especially prohibited … to destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.” Article 46 holds that “family honours and rights, individual lives and private property, as well as religious convictions and liberty, must be respected.”25 But these articles do not clearly distinguish civilians from soldiers, nor do they spell out how states should distinguish military from civilian targets – these would be defined later on, in the 1907 Hague Conventions concerning naval warfare. However, a plausible interpretation of the Martens Clause and the negotiations surrounding it suggests that the delegates implicitly intended to have it serve as the basis for civilian immunity in customary IHL. But although the Martens Clause imposes restraints on what states can do in war, a closer analysis of the Hague negotiations shows that it left permissive loopholes with respect to unintended killing. The negotiations that led to the adoption of the Martens Clause arose within the context of a broader debate between powerful and weak states concerning the rights and obligations of belligerent forces vis-à-vis occupied peoples and territories. The first two chapters of the Brussels Declaration of 1874 – Articles I–XI – defined the terms of military occupations and spelled out the characteristics that individual combatants had to satisfy in order to qualify as lawful combatants entitled to POW status upon capture.26 As one might expect, powerful states opposed any proposal that would extend legal recognition to civilians who spontaneously rise up in rebellion against occupying forces, for this would essentially grant them POW status and thereby make it harder for occupying armies to quell armed rebellions. This is because POWs cannot be punished for merely participating in armed hostilities. However, weaker states defended the idea that civilians should be permitted to rise up in rebellion to resist incursions into their territory. They believed that such civilians should be regarded as lawful soldiers who are not “subject to execution” upon capture.27 25 26 27

The Avalon Project: https://avalon.law.yale.edu/19th_century/hague02.asp. See the Brussels Declaration at the ICRC website: http://ihl-databases.icrc.org/ihl/ INTRO/135. Ticehurst (1997, 125).

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This debate threatened to bring the negotiations over the law and customs of war to a standstill. Weaker countries such as Belgium were critical of the 1874 Brussels Declaration because it stipulated that invading forces have certain legal rights. While not wishing to overlook the fact that invading forces do in fact exercise certain powers over occupied nations, Belgium rejected the idea that these powers ought to be deemed lawful. Moreover, they rejected the idea that combatant status should be restricted to states.28 However, great powers such as Germany argued that if civilians in occupied territories are given greater leeway to rise up in rebellion, this would incidentally threaten the lives of the civilian population. After all, if non-uniformed civilians are not required to join an army or an organized militia, “regular troops will find themselves in an unfavorable situation, being unable to tell whether they have before them peaceful peasants or enemies ready for combat.”29 Without an agreement on the rights and duties of occupying forces visà-vis the civilian population, the rules on military occupations in the Brussels Declaration would, most likely, not have been codified, hence leaving a significant aspect of armed conflicts (i.e., occupation of enemy lands) ungoverned by positive international law. To prevent this from happening, Feodor Martens, a Russian delegate and the head of Committee II (which was tasked with considering the laws of war in the Brussels Declaration), proposed that the delegates adopt the following proposition: “Until a perfectly complete code of the laws of war is issued, the conference thinks it right to declare that in cases not included in the present arrangement, 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 the public conscience.”30 This proposition facilitated cooperation by enabling strong and weak states to meet halfway: It recognized that there might be “principles or customary rules of international law granting the status of lawful combatants to nationals of an occupied country,” but it also met the demands of powerful states who opposed a wholesale rejection of the Brussels Declaration.31 Although the delegates to the 1899 conference disagreed over the precise legal rights and obligations of military forces vis-à-vis the civilian populations in occupied territories, they did not disagree over the importance of setting due restraints on the arbitrary use of military force, nor did they disagree with the principle that civilian lives should be 28 31

Scott (1920a, 504). Cassese (2000, 198).

29

Scott (1920a, 552).

30

Scott (1920a, 548).

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“spared as much as possible.”32 Indeed, this view was widely shared among the participants at the conference. As the head of the American delegation, Andrew Dickson White, pointed out in his diary, the McKinley administration instructed US representatives to give “earnest support” to any “practicable proposals” that could “alleviate” the “sufferings” of those “who by the chance of battle have been rendered helpless.”33 Furthermore, as Martens himself remarked before introducing the clause that bears his name, part of the intention in adopting the declaration was to ensure that “cases not provided for” are not “left to the arbitrary judgment of … military commanders.”34 The shared interest in reaching some agreement on the law and customs of warfare was therefore an important motivating factor behind adopting the Martens Clause. As such, an implicit acceptance of basic moral parameters for regulating the excessive and arbitrary use of military force against civilians played a crucial role in building diplomatic support for the 1899 Hague Conventions on the Law and Customs of War on Land. Even though the distinction between soldiers and civilians was not nearly as well developed in 1899 as it is now, the delegates at the conference did accept the idea that soldiers should refrain from deliberately attacking the civilian population. Furthermore, their reason for endorsing this distinction consisted not merely in the fact that civilians pose no threat to the lives of soldiers, but also in the fact that civilians have done nothing to give up their right not to be killed. As Martens pointed out on a number of occasions, the reason for codifying the laws of war had to do with the importance of protecting the “innocent”35 and the “inoffensive,”36 terms which clearly refer to unarmed members of the civilian population. The way such concepts were used in the negotiations suggests that the delegates broadly accepted the idea that the military should not be permitted to deliberately attack anyone who fails to present a threat to the lives of invading soldiers. In fact, in a speech that specifically addressed the need for codifying the laws and customs of warfare, Martens argued that

32 33

34

Meron (2000, 83). White (1922, 253–254). As White points out in his Autobiography, the United States had two core interests in the 1899 Hague Conventions: (1) to garner support for a permanent court of arbitration; and (2) to ensure respect for the immunity of private property on the high seas. However, in a diary entry on June 10, 1899, White noted that his interest in the laws of war became stronger throughout the course of the conference. In particular, he noted that “the Brussels rules seem to me of much greater importance now than at first, and my hope is that we shall not only devise a good working plan of arbitration, but greatly humanize the laws of war,” (295). 35 36 Scott (1920a, 548). Scott (1920a, 506). Scott (1920a, 551).

The Hague Peace Conferences & Second World War, 1899–1945 203 Our mission has been well defined from the very beginning of our common labors: we wish to elaborate, in a spirit of concord, humanity, and justice, the uniform bases for the instructions which the governments will pledge themselves to give to their armed land forces. We have always recognized the imperious law of the inexorable necessities of war …… However, … we are unanimous in the desire to mitigate … the cruelties and disasters in international conflicts which are not in any wise rendered inevitable by the necessities of war.37

Although this speech betrays an interest in developing codified norms for the protection of “unarmed populations against the useless cruelties of war,” a closer analysis of the language used shows that the provisions for protecting civilians in the 1899 Hague Conventions were intended to be relatively permissive.38 Specifically, Martens seems to suggest that incidental civilian casualties are permissible provided that they are justified by the exigencies of military operations. In another context, Martens said that “it is not against the necessities of war, but solely, I repeat, gentlemen, against the abuses of force that we wish to be guaranteed.”39 Furthermore, his claim that the mutual desire of the assembled delegates was to “mitigate, as far as possible, the cruelties and disasters in international conflicts which are not … rendered inevitable by the necessities of war,” indicates that Martens implicitly permitted unintended civilian casualties and unintended property destruction.40 Thus, a plausible interpretation of the Martens Clause is that even though it was intended to restrict the use of military force within mutually acceptable moral limits, it effectively preserves space for decision-making discretion. The idea of military necessity reflects the moral intuition that normal restraints should be relaxed in more extreme circumstances. The Martens Clause is often hailed as one of the crowning achievements of the 1899 Hague Peace Conference, and to the extent that it helped build support for codifying the laws and customs of war in an international treaty, such an interpretation certainly has merit. However, the clause has two main drawbacks. First, though it seems plausible to conclude that the Martens Clause, in effect, might outlaw or significantly restrict strategic bombing,41 the discussions surrounding the Martens Clause indicate that it was explicitly designed to allow for the necessities of warfare as belligerents define them, which creates significant decisionmaking discretion with respect to the choice of military strategies and tactics in war. Second, the clause directly remits judgments about the legality of specific military policies to the vague notions of “the usages 37 39 41

38 Scott (1920a, 506–507), emphasis added. Scott (1920a, 506). 40 Scott (1920a, 518). Scott (1920a, 507), emphasis added. Grayling (2006, 121).

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established between civilized nations,” “the laws of humanity,” and “the requirements of public conscience.” The civilian population may be under the “empire of the principles of international law,” but without specific articles that spell out what is permitted and what is not, the Martens Clause is something of an empty promise in the context of armed hostilities. That said, my analysis of the debate that led to the Martens Clause illustrates two key points that are relevant for evaluating the theory put forth in Chapter 2. First, it shows how moral intuitions concerning the need to protect “unarmed populations against” the “useless cruelties of war and the evils of invasion” encouraged states to agree on a statement that salvaged the Hague Regulations.42 These shared intuitions were not just an input into the communicative reasoning process, but rather they played a crucial role in motivating states to overcome the impasse between the supporters and the critics of the Brussels Declaration. Second, the case shows how diplomats use the intention/side-effect distinction to build support for restrictive and permissive international norms. Lawful Military Targets: Indiscriminate Weapons, Airborne Projectiles, and Artillery Bombing The problem of how to define legitimate targets is a perennial concern for the laws of armed conflict. The 1868 St. Petersburg Declaration set forth that the “only legitimate object which states should endeavor to accomplish during war is to weaken the military forces of the enemy,” and that “for this purpose it is sufficient to disable the greatest…number of men.”43 However, it is understood that the use of certain strategies, tactics, and weapons systems will expose combatants and civilians to some amount of suffering, either deliberate (in the case of combatants) or incidental (in the case of civilians). At the 1899 Hague Peace Conference, the question that states had to address was how much suffering was justified and what kinds of weapons and tactics states could use in war. There were three general conclusions that the delegates reached: (1) that states cannot use weapons that cause unnecessary suffering; (2) that they cannot use weapons that are incapable of discriminating between combatants and noncombatants; and (3) that they cannot target cities, villages, and towns that are undefended. In each case, states used ethical arguments that not only restricted the amount of suffering that states are allowed to cause in war but also opened up 42

Scott (1920a, 506).

43

The 1868 St. Petersburg Declaration.

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space for decision-making discretion. In this section, I examine the arguments that states used to define the idea of legitimate military targets with respect to indiscriminate weaponry, balloon-dropped projectiles, and artillery. Although the 1899 conference was contemporaneously seen as a failure in light of the fact that it failed to stem the arms race in Europe, it did make notable headway in limiting the types of weapons that states can use in battle. In terms of the restrictive effects of the laws of war, the 1899 conference is noted for its achievement of a prohibition on the use of asphyxiating gases and dum-dum, or hollow-tipped, bullets that expand upon impact. With the exception of the US delegation, most states agreed that since asphyxiating gases cause unnecessary suffering and since they cannot effectively discriminate between soldiers and civilians they should be outlawed. In addition, some delegates argued that asphyxiating gases are barbarous weapons akin to “the poisoning of a river.”44 In response, the American delegate Alfred Mahan made two key points. First, he argued that “since projectiles of this kind” did not yet “exist,” an absolute prohibition on their use did not make sense.45 Second, he argued that asphyxiating gases were no more inhumane than existing methods of war, and that in some cases they may actually be more humane. As he put it, “From a humane standpoint it is no more cruel to asphyxiate one’s enemies by means of deleterious gases than with water, that is to say, by drowning them, as happens when a vessel is sunk by the torpedo of a torpedo-boat.”46 Further, he argued that over time asphyxiating gases would be seen as acceptable weapons of war: “The objection that a war-like device is barbarous has always been made against all new weapons, which were nevertheless eventually adopted. In the Middle Ages, firearms were criticized as being cruel, and later on mortars and still more recently torpedoes received the same accusation.”47 Yet, as White pointed out in his diary, the proponents of the prohibition argued that whereas “torpedoes at sea” would only threaten “military and naval forces,” “asphyxiating bombs might be used against towns for the destruction of vast numbers of non-combatants.”48 The debate over asphyxiating gases illustrates how emotions shape diplomatic negotiations. Not only did the advocates of the declaration repeatedly express moral repugnance toward the idea of using asphyxiating gases – indeed referring to them as weapons “barbarous in character”49 – but some evidence even suggests that they had a basic aversion to such weapons. While some delegates, most notably Mahan, argued that 44 47

Scott (1920a, 296). Scott (1920a, 296).

45 48

Scott (1920a, 283). White (1922, 319).

46 49

Scott (1920a, 283). Scott (1920a, 366).

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asphyxiating gases are no less humane than weapons that “kill or cripple … by tearing the body with pieces of metal,” others argued that it is far worse to kill people with asphyxiating gases than with bullets.50 This suggests that, at least for some representatives, the thought of killing people with harmful gases just seemed repugnant – a fact that might help account for the later emergence of the chemical weapons taboo.51 Also, the fact that several delegates made an implicit connection between asphyxiating gases and poison suggests that, at least in their minds, the taboo against poison applied directly to the use of asphyxiating or deleterious gases. Finally, in a line of argument that would be used repeatedly throughout the twentieth century, the proponents of the declaration used the intention/side-effect distinction to limit the effect of the prohibition to “the use of projectiles the sole object of which is the diffusion of asphyxiating … gases.”52 The italicized words were inserted to make sure that “the prohibition shall relate solely to projectiles whose purpose is to spread asphyxiating gases and not to those whose explosion incidentally produces these gases.”53 Had the aversion to asphyxiating gases and indiscriminate weapons been less pronounced, then the resulting norm would have been very different, and it may not have arisen at all. For one thing, the emotional aversion to asphyxiating gases ensured that these weapons were categorically prohibited among the contracting parties, again with the exception of the United States. After all, to safeguard civilian lives, the delegates could have simply required that asphyxiating gases only be used against military targets in sparsely populated areas. There was no clear reason for a categorical prohibition. Despite the fact that most states expressed a clear aversion to the use of asphyxiating gases, the United States opposed the prohibition. If the idea of using indiscriminate weapons like this was almost universally regarded as beyond the pale of “civilized warfare,” then why did the United States oppose outlawing them altogether? In short, because Captain Mahan opposed the declaration. As Andrew White recounts in his memoirs, he was personally in favor of prohibiting asphyxiating gas; indeed, he even remarks that his hope was that the United States would “yet stand with the majority on the record.”54 The key reason he cites in favor of prohibiting asphyxiating gases was the indiscriminate effect it might have on “non-combatants, including women and children.”55 However, since the McKinley administration had given no specific instructions on this issue, he simply deferred to Mahan. As he put it, “I am not satisfied with 50 52 53

51 Scott (1920a, 366). Price (1995) and Pinker (2011, 275–276). Hague Declaration Concerning Asphyxiating Gases, emphasis added. 54 55 Scott (1920a, 366). White (1922, 320). White (1922, 319).

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our attitude on this question; but what can a layman do when he has against him the foremost contemporary military and naval experts?”56 As White recalled, he and Mahan had a basic disagreement about the legitimacy of using the law to restrain the use of military force. While White believed that every effort should be made to humanize the use of force through international law, Mahan believed that the unrestrained use of force would hasten the road to peace. As White observed, this was “the natural view of [the] sailor.”57 This comment suggests that the moral dial-settings of White and Mahan were very different: Although they shared an interest in advancing the cause of peace, White was far more concerned about reducing the suffering of war for civilians. This shows that even though the United States formally rejected the declaration on asphyxiating gases, there was still genuine interest among some Americans in limiting the “cruelty and suffering in war.”58 With respect to balloon-dropped projectiles, the conference adopted a five-year prohibition. Although there was widespread concern with the indiscriminate effects of airborne projectiles, the prohibition was limited to five years to allow for technological innovation. Since airwar technology was in its infancy, the United States argued that it would eventually be rendered more precise over time. But for the intervention of the United States, this prohibition would most likely have been permanent. Article 3 of the letter that Muraviev had circulated to the other delegates recommended that states impose “limitation[s]” on “the use in field fighting of explosives of a formidable power,” and moreover it suggested prohibiting “the discharge of any kind of projectile or explosive from balloons or by similar means.”59 The conference addressed this recommendation on May 29, 1899 in Commission I. In a speech that foreshadowed World War II strategic bombing, Dutch representative, Den Beer Poortugael poignantly raised the following points Does it not seem excessive to authorize the use of infernal machines which seem to fall from the sky? I know well that when one is obliged to wage war one must wage it as energetically as possible, but this does not imply that all means are permissible. At the Brussels Conference in 1874 it was decided, in Article 12… that the laws of war do not recognize belligerents as having an unlimited power as to the choice of means of injuring the enemy… Now, the progress of science…is such that things which were but yesterday most incredible may be realized today. We may foresee the use of projectiles or other things filled with deleterious or soporific gases and hurled from balloons among troops, placing them at once hors de combat.60

56 59

57 58 White (1922, 319). White (1922, 317). White (1922, 265). 60 Quoted in Scott (1917, 3). Scott (1920a, 342).

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With the exception of Great Britain, and with a reservation from Romania “to limit the understanding for five years,” the resolution to prohibit the dropping of projectiles from balloons was affirmed by the conference.61 However, on June 7, 1899, US delegate Captain Crozier reopened the discussion and argued that the ban should be limited to a period of five years. Great powers such as the United States and Great Britain had a strong incentive in making sure that the Hague Conventions did not unduly limit their ability to wage war. Moreover, advances in aerial technology were in their infancy, and so it made sense to make sure that methods of war would be protected from undue restraints. But in his argument for why the prohibition should be limited to a five-year period, Captain Crozier affirmed both the moral considerations for precision bombing (i.e., that precision bombs can be directed against military installations) and the utilitarian considerations that underlie the idea of total warfare. His comments are worth quoting at length: Of the two cases where restrictions have been imposed, the first, the prohibition of making use of certain classes of bullets, proceeds exclusively from a humanitarian sentiment, and it is therefore reasonable to suppose that the second has its basis in such a sentiment. Now, it seems to me difficult to justify by a humanitarian motive the prohibition of the use of balloons for the hurling of projectiles or other explosive materials. We are without experience in the use of arms whose employment we propose to prohibit forever. Granting that practical means of using balloons can be invented, who can say that such an invention will not be of a kind to make its use possible at a critical point on the field of battle, at a critical moment of the conflict, under conditions so defined and concentrated that it would decide the victory and thus partake of the quality possessed by all perfected arms of localizing at important points the destruction of life and property and of sparing the sufferings of all who are not at the precise spot where the result is decided. Such use tends to diminish the evils of war and to support the humanitarian considerations which we have in view. I do not know of machines thus efficient and thus humanitarian, in the incomplete stage of development in which aerostation now is; but is it desirable to shut the door to their possible introduction among the permitted arms? In doing so, would we not be acting entirely in the dark, and would we not run the risk of error inherent in such a manner of procedure? The balloon, as we know it now, is not dirigible; it can carry but little; it is capable of hurling, only on points exactly determined and over which it may pass by chance, indecisive quantities of explosives, which would fall, like useless hailstones, on both combatants and noncombatants alike. Under such conditions, it is entirely suitable to forbid its use, but the prohibition should be temporary and not permanent. At a later stage of its development, if it

61

Scott (1920a, 342).

The Hague Peace Conferences & Second World War, 1899–1945 209 be seen that its less desirable qualities still predominate, there will still be time to extend the prohibition; at present let us confine our action within the limits of our knowledge.62

In a meeting on June 22, 1899, Captain Crozier made clear exactly what he meant in terms of the defects of aerial technology. In his view, the main defect had to do with the fact that “it is impossible to foresee the place where the projectiles or other substances discharged from a balloon will fall and since they may just as easily hit inoffensive inhabitants as combatants, or destroy a church as easily as a battery.”63 However, “if it were possible to perfect aerial navigation in such a way as to do away with these defects, the use of balloons might decrease the length of combat and consequently the evils of war as well as the expenses entailed thereby.”64 In short, Crozier believed that developments in aerial technology would increase the capacity for states to intentionally target military installations and to limit incidental collateral damage. The intention/side-effect distinction therefore informed the US response to the first attempt to restrict means of bombing from the air. What is interesting about Crozier’s argument, however, is the way in which the moral rules related to precision bombing intermingle with utilitarian arguments for what would later be called strategic bombing, or bombing that goes behind enemy lines to hit strategic targets or to undermine civilian morale. In the late nineteenth and twentieth centuries, states wanted to maintain the capability to wage wars from the air because they believed that doing so would reduce the costs of war – a belief that experiences with trench warfare in World War I would later reaffirm. As A. C. Grayling points out, it was his experience with flying over the trenches of the Western front that “engendered” in Arthur Harris the “emphatic belief … that wars should be won from the air.”65 Indeed, this view is precisely what motivated the doctrine of total warfare since the US Civil War – that it reduces, rather than increases, the overall suffering of war. In the italicized sentences of his speech Crozier makes clear that a temporary rather than permanent ban on launching projectiles from balloons will further two interrelated objectives. First, it will enable states to develop air warfare technologies that can more effectively distinguish between military and civilian targets. And second, by doing this, it will thus enable states to develop military technologies that make wars easier to win, hence shorter and less horrific, both for civilians and soldiers alike. An outright ban would preclude these developments.

62 64

63 Scott (1920a, 354), emphasis added. Scott (1920a, 280). 65 Scott (1920a, 280). Grayling (2006, 49).

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In the any case, the conference eventually adopted this proposal to limit for a period of five years the ban on balloon-dropped projectiles. Similar considerations affected how states defined lawful targets of artillery bombardment. The problem of how to define which towns and areas can be legitimately bombarded is particularly important for the development of the laws of aerial warfare, for it was this component of the Hague Regulations that eventually gave rise to the idea of lawful military targets in positive international law.66 At the 1874 Brussels Conference, states agreed, in Article 15, that “fortified places are alone liable to be besieged.” The rationale behind safeguarding unfortified areas was that such locations are open to occupation, and as such their inhabitants must be protected from useless suffering. But since unfortified locations might nonetheless possess important military objects, this term was later “amended” at the Hague Conference to include all undefended locations.67 The reason for altering the terminology from “fortified” to “undefended” was to ensure that armies have the right to bomb villages and towns for reasons of imperative military necessity: Since fortifications can sometimes defend towns or villages that do not themselves have such fortifications, it can be advantageous to attack towns that are defended, but not technically fortified. Although this arcane debate over how to precisely define areas that are liable to attack may seem to be unrelated to my argument about the influence of cognitive heuristics on the laws of war, in the following sections I show that the intention/side-effect distinction was crucial for later developments in the concept of lawful military targets at the 1907 Hague Peace Conference and the Hague Commission of Jurists in 1923. The debates over balloon-dropped projectiles and artillery bombing illustrate two important points. First, they show how states utilize the intention/side-effect distinction to design international norms that protect civilians from intended killing, but leave them exposed to unintended suffering. Second, they show how emotional framing shapes international agreements. In particular, when we compare the debate over balloon-dropped projectiles with the debate over asphyxiating gases, there is a clear difference in the outcome. While there was no time limit to the asphyxiating gas ban, balloon-dropped projectiles were only banned for a limited period of five years. One reason for this was military expediency: Balloon-dropped projectiles were seen as a promising new 66 67

Spaight (1924, 196–197). Spaight (1924, 196); Scott (1920a, 494). Article 25 of the 1899 Hague Convention II holds that “the attack or bombardment of towns, villages, habitations, or buildings which are not defended, is prohibited.”

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weapon of war. But considerations of military expediency only provide part of the explanation. After all, Alfred Mahan explicitly argued against forbidding asphyxiating gases because he believed that, once invented, their use might “produce decisive results.”68 Also, despite the fact that it is hard to control the effects of asphyxiating gases to ensure that they do not harm civilians, there is no reason why the use of such weapons could not have been limited to sparsely populated areas to reduce their effects on civilians. The added emotional aversion that many delegates expressed toward the use of asphyxiating gases helps explain the variation in outcome. As noted, some delegates believed that killing soldiers with asphyxiating gases is “more cruel” than killing them with bullets or bombs.69 Had the aversion to airborne projectiles been more pronounced, it is likely that the resulting prohibition would have been longer.

The Hague Peace Conference of 1907: Lawful Military Targets in Naval Warfare As intuitive as the idea may seem at present, the idea of lawful military targets was anything but intuitive in the late nineteenth and early twentieth centuries. At the 1899 Hague Conference, states outlawed the artillery bombardment of undefended cities, towns, and villages, but what precisely constituted an “undefended” city, town, or village was never clearly defined. Moreover, the idea of protecting undefended locations applied most directly to artillery bombardment, for undefended cities, towns, or villages were generally perceived as open to occupation by ground forces. But given the military technologies of the time, there were no incentives to develop more precise international laws. The modern notion of lawful military targets evolved out of a tension between developments in military technology, particularly airplanes, and extant legal norms on targeting. The idea of lawful military targets evolved to permit states to bomb installations in undefended cities, towns, or villages when the imperative necessities of warfare required it. In an odd coincidence of history, the idea evolved most directly out of debates surrounding naval operations in coastal areas,70 but the concept of lawful military targets would eventually develop into a much more precise principle of international law with the development of bomber aircraft. The problem with permitting states to bomb undefended locations, however, was that this put bombs in closer quarters with civilians. In this section, I show that the 68

Scott (1920a, 366).

69

Scott (1920a, 366).

70

Spaight (1924, 196).

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intention/side-effect distinction enabled states to develop legal principles that would allow the bombing of cities, towns, or villages while absolving them of responsibility for civilian deaths. Civilian Immunity, Military Targets, and the Laws of Naval Bombardment Article 25 of the 1899 Hague Convention on the Law and Customs of War holds that states cannot bomb towns and villages that are undefended, but it did not tie this rule to naval operations. At the 1907 conference, one initial question had to do with whether the laws of land warfare ought to be applied to naval war. Belgium argued that they should, and in the process articulated the rationale upon which Article 25 was founded, i.e., that “it is forbidden to harm in any way populations who take no part in the military operations; and, even between combatants all unnecessary infliction of injury is forbidden.”71 But in light of the fact that major naval powers – especially Great Britain – opposed the idea of applying this rule to naval operations, Article 25 was restricted to land warfare. According to Belgium, “It was impossible for the plenipotentiaries of 1899 not to be struck by the strangeness … and incongruity of a juridical situation which permitted the same belligerents, in the same war, to bombard a town from the sea, while formally forbidding them to do so on land.”72 With respect to the bombing of undefended ports, towns, and villages, there were two basic lines of argument. Many delegates favored explicitly outlawing attacks on undefended towns, and indeed some argued that naval commanders should be required to warn the authorities of bombed villages and towns before commencing bombing operations. Others argued that naval commanders should be able to bomb targets when imperative military necessities require it. During the negotiations, states with powerful navies advocated proposals that would ensure greater leeway for decision-making discretion, whereas states with weaker naval forces pushed for greater restraint. Both sides agreed with the idea that safeguarding the civilian population required that states develop some limitations on naval bombardment, but states with powerful naval forces favored laws that would permit them to hit undefended ports. The rationale for this had to do with some of the peculiar features of naval warfare. Though it was an accepted rule of law that attacking undefended towns and villages with artillery fire is illegal, land operations are very different from naval operations. 71

Scott (1921, Volume 3, 543).

72

Scott (1921, Volume 3, 543).

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In ground warfare, armies are able to occupy territory and then proceed to destroy the war materiel of the enemy. In naval operations by contrast it can be difficult to ensure that war materiel is destroyed prior to landing, which increases the incentives for bombing war ships even when they may not be in use.73 As a result, naval commanders will often find it militarily necessary to destroy “with artillery … hostile warships found in a port, even in the case where these warships [are not] of service in defending the town and when, too, the town is not defended.”74 At issue in this debate were a set of draft articles concerning the permissibility of bombing military objectives in undefended naval ports, towns, and villages for reasons of imperative military necessity. As a state that relied heavily on its capacity to project power at sea, Great Britain endorsed a wide interpretation of military necessity. British delegate Captain Ottley argued that even though protecting noncombatants is an important objective, it should not place undue restraints on the use of military force. In particular, Ottley argued that not only should naval commanders not be obliged to warn local authorities before the commencement of bombing, for this would allow them to load their cannons on land, but in addition he argued that they should be permitted to attack objects and installations important for the military operations of the enemy. He stipulated that “in safeguarding as far as possible noncombatants and private property of individuals on land, we ought not, when war exists, restrain operations that are permissible and directed in this way solely against the belligerent power of the enemy.”75 Moreover, in a statement that shows how the intention/side-effect distinction bolstered a more permissive interpretation of military necessity, he proposed an amendment to one draft article that held that “ports, towns, villages, dwellings or buildings cannot be considered as protected from unintentional damages which might result…from the destruction of military works, military or naval establishments, depots of arms or war materiel, workshops utilized for the needs of the hostile fleet or army, or ships of war in the harbour.”76 Similarly, the French proposed an article on undefended ports which held that in the case of imperative military necessity, commanders are permitted to target military installations without giving the local authorities any time to destroy military works or installations. Article 1 stipulated that states are not allowed to bomb “undefended ports, towns, villages, dwellings, or buildings.” The French draft of Article 2 held that

73 75

74 Spaight (1924, 196). Scott (1920b, Volume 1, 114). 76 Scott (1921, Volume 3, 547). Scott (1921, Volume 3, 547).

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Military works, military or naval establishments, depots of arms or war materiel, workshops or plant which could be utilized for the needs of the hostile fleet or army, and the ships of war in the harbor, are not…included in this prohibition; these the commander of a naval force may destroy with artillery, after a summons followed by a reasonable time of waiting, if all other means are impossible, and when the local authorities have not themselves destroyed them within the time fixed. If for imperative military reasons immediate action is necessary, and no delay can be allowed the enemy, it is understood that the prohibition to bombard the undefended town holds good, as in the preceding case, and then the commander shall take all due measures in order that the town may suffer as little harm as possible.77

In response to the French proposal, some states argued that permitting naval officers to deviate from their obligations in situations of imperative military necessity would threaten the underlying moral purpose of the law. According to Belgium, this kind of escape clause removed “almost all the effectiveness of the protection.”78 In a speech that presciently called attention to the dangers of hitting military installations in populated areas, Belgian delegate Van Den Heuvel argued that In effect it is equivalent to saying that whenever a commander of naval forces deems himself pressed by circumstances he may accord no delay; the words “imperious necessities” make him the judge of the situation and “of immediate action” permit him to dispense with any delay and even with any summons. This plan may lead very far. We are dealing not with defended towns, but with open towns occupied not by combatants but by peaceful inhabitants. The question is, whether to permit destruction by bombardment and with suddenness, without any warning, of the public and private depots, not only the installations adapted to serve the fleet and the army but also shipyards, bridges, railway stations, etc. Where is the town which, if bombarded in these circumstances, will not suffer incalculable damage from projectiles that fall on establishments and occupied places, in the streets and accidentally upon numerous neighboring dwellings?79

Advocates of the French article responded in two ways. First, they argued that naval commanders usually have an interest in shoring up their “moral responsibility,” and so they should be inclined to notify local authorities to destroy military installations and works “in their presence.”80 Second, they argued that the French proposal was an improvement on the status quo, which contained very few provisions on the bombing of undefended ports. Since many states could not accept an

77 79

78 Scott (1921, Volume 3, 347–348). Scott (1921, Volume 3, 349). 80 Scott (1921, Volume 3, 349). Scott (1921, Volume 3, 349).

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absolute prohibition on bombing “certain defined parts” of undefended ports,81 the French proposal passed in Commission III. These developments in the laws of naval warfare are important for two main reasons. First, they were the first time that states used the notion of military targets and installations to justify the bombing of towns and villages that are undefended and well-populated – an idea that J. M. Spaight, an enthusiastic supporter of air power in pre-World War II Great Britain, said also applied to aerial bombing. In Spaight’s view, the notion of a legitimate “military objective” is “implied in the naval bombardment rule,” since this rule holds that it is lawful for naval commanders to bomb unfortified and undefended cities “containing certain establishments,” in particular “military works, military or naval establishments, depots of arms, and of materiel of war, workshops or plant fit to be used for the needs of the enemy fleet or army, and ships of war in the port.”82 In short, the laws of naval warfare opened up space for the development of the notion of lawful military targets, which would later be applied to aerial warfare and strategic bombing. Second, those who defended the idea that naval commanders should be permitted to bomb military objectives in undefended ports utilized the intention/sideeffect distinction to justify relaxing the prohibition on bombarding undefended locales. Recognizing that bombing undefended ports or villages puts munitions in closer proximity to the civilian population, the intention/side-effect distinction helped reduce the liability that naval commanders might have for unavoidable damage to the civilian population. Not only did the British argue that undefended ports, towns, and villages should not be immune from unintentional damages, but Article 2 of the resulting convention on naval warfare holds that officers incur “no responsibility for any unavoidable damage which may be caused by a bombardment under such circumstances.”83 Far from merely protecting civilians, such rules ensure that states can evade accountability for collateral damage. Moral Emotions, Civilian Immunity, and the Protection of Merchant Vessels What evidence is there that it was the emotional salience of intentions that caused delegates at the 1899 and 1907 conferences to adopt particular rules on targeting in land, naval, and air war? In this section, I examine 81 83

82 Spaight (1924, 196). Spaight (1924, 196–197). Article 2 of the Hague Convention Concerning Bombardment by Naval Forces in Time of War.

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the negotiations on protecting merchant vessels on the high seas to show that it was the arational or intuitive aspect of emotional beliefs regarding the intentional killing of civilians that led diplomats to accept the argument that the bombing of undefended cities and nonmilitary objects should be unlawful. I defend this view by analyzing a case in which US diplomats used the intention/side-effect distinction to defend a policy with a relatively low emotional salience: the capture of private property on the high seas. As a traditional proponent of the idea that nonmilitary vessels should be immune from capture or attack, protecting private property on the high seas has long been a principle of the American way of war, going as far back to the origins of the republic in the eighteenth century.84 At the 1899 conference, the American delegate Andrew Dickson White unsuccessfully pushed the conference to extend immunity to private property on the high seas,85 an idea that was later taken up at the 1907 Hague Peace Conference. At the 1907 conference, the United States argued for imposing restraints on the rights to capture enemy merchant vessels in naval operations. In a speech that one delegate proclaimed was “an address which will doubtless be considered one of the most remarkable documents emanating from the Conference,” Joseph Choate, the head of the American delegation, defended the American proposal for outlawing the right of capture of merchant vessels by setting it in the context of the traditional American defense of private property at sea.86 Choate argued that a prohibition on the right to capture enemy merchant ships would not only serve to advance international commerce, but that such a rule was consistent with universal principles of justice. Choate advanced three main arguments. First, he argued that the practice of capturing merchant vessels conflicts with principles of justice to which all civilized states must consent.87 Second, he argued that it would be detrimental to international commerce. Lastly, he argued that outlawing the right of capture is an essential step toward leaving states “to their proper duty of fighting with each other,” thus leaving civilians at peace.88 Although American delegates rejected the idea that states have a right to capture merchant vessels on the high seas, they did not argue that humanitarian considerations always prohibit using force against unoffending merchant ships. Rather they argued that in cases of military necessity or in situations where ships are trying to break through a blockade, states can legally capture merchant ships on the high seas.

84 87

85 86 Davis (1976, 12). White (1922, 266). Scott (1921, Volume 3, 770). 88 Scott (1921, Volume 3, 762). Scott (1921, Volume 3, 763).

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In particular, Choate argued that if a commander were to “send out forces for the purpose of robbing private houses of their contents, and destroying the residences of unoffending noncombatants,” this would amount to a “gross violation of every principle of justice and good morals, and of the existing laws of war.”89 Importantly, Choate did not presume that merchant ships have absolute immunity from attack, but rather he argued that they were only immune from deliberate attacks, or in his words “wanton spoliation … for the mere purpose of enriching the captors, or their governments, or of terrorizing the unfortunate owners.”90 Uriah Rose, a colleague of Choate’s, later reiterated these claims, adding that the US proposal for protecting private property at sea was consistent with natural law.91 According to Rose, because all nations accept the principle that private property is inviolable on land – except for situations of imperative military necessity – and since there are no morally significant differences between land- and sea-based property, it is a matter of natural law that nations should apply the same rules of war on sea as upon land.92 Though articulated with the utmost eloquence, these arguments were ultimately unsuccessful. Opponents to the American proposal raised three key arguments. First, some delegates argued that the American proposal was inconsistent with the law of naval blockades, and as a result would render it impossible for states to utilize a legitimate method of war.93 Second, several states argued that outlawing the seizure of private property on the high seas would take away an effective method of military coercion.94 Moreover, by reducing the costs of war, the American proposal would effectively make wars more likely, for the fear of the economic disturbances wrought by war renders a “considerable portion of 89 91 92

93

90 Scott (1921, Volume 3, 759). Scott (1921, Volume 3, 759). Scott (1921, Volume 3, 785–786). Two pieces of evidence suggest that Choate was sincere in his advocacy of the immunity of private property on the high seas. First, in a preparatory meeting at the US Department of State, Choate defended this view against critics who argued that it was no longer beneficial to US national interests in light of the fact that “less than eight percent” of exports were shipped in American vessels (Davis 1976, 171). Choate argued that the United States “should not reduce the discussion to the level of national needs and interests,” but rather “that the doctrine of immunity made for civilization” As he observed, the United States “should examine the question from the humanitarian and international standpoint rather than weigh the doctrine solely in the scale of selfinterest.” “Meeting of the American Commission to the Second Hague Conference,” April 20, 1907, the Joseph Choate Papers, 1852–1917, Library of Congress, Washington, DC. Second, Choate frequently advocated this position in personal letters as well as in discussions with other states prior to the start of the conference (Davis 1976, 179–180). In short, he exhibited a pattern of support for the policy, one that was rooted in moral rather than instrumental concerns. 94 Scott (1921, Volume 3, 778). Scott (1921, Volume 3, 782).

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the population” more risk averse.95 Since modern economies are highly dependent on international trade, the capturing of merchant ships could have a devastating impact on the functioning of the state, and as a result, it would make wars less likely and of shorter duration. Third, and most importantly for the argument I make here, the opponents of the American proposal argued that the practice of seizing enemy merchant vessels was not nearly as morally objectionable as the systematic pillaging of enemy villages and towns. On July 5, 1907, in a speech that addressed Rose’s argument that seizing merchant vessels violates natural law, British official Sir Edward Fry argued that the practice in question is very different from the pillaging of enemy towns. The American delegate whom we have just heard with such interest has had much to say about the cruelty in the exercise of the right of capturing private property. In my opinion, this is a mistake. It is true that in all war operations there is something of the barbarous, but of all its operations there is none so humane as the exercise of this right [i.e., capturing of enemy merchant vessels]. Consider, I beg you, these two cases: the one the capture of a merchant ship at sea, the other the operations of a hostile army. In the first case you see an instance of force majeur against which it is impossible to struggle. No one is killed, no one is even wounded; it is a peaceful proceeding. In the other case what do you see? You see the country devastated, cattle destroyed, houses burned, women and children fleeing before the enemy soldiers, perhaps horrors which I dare not mention. To complain therefore of the capture of merchant ships at sea and not to prohibit war on land is to choose the greater of two evils.96

Natural law may not observe the boundaries between land and sea, but here Fry perceptively called attention to the crucial difference between land and naval operations on the high seas: the presence of large numbers of civilians, and the gruesome ways in which they are often killed or massacred.97 This last exchange calls attention to the critical role of emotional framing in arguments for instituting new laws of warfare. Civilian immunity is not just based on internalized rules of justice, but in addition it is based on sentiments of moral horror toward the kinds of iniquities that attend the seizure and pillage of property on land: destruction of homes and crops, the slaughter of women and children, the use of rape as a weapon of war, and so on. Seizing property from merchant vessels just does not seem nearly as bad as the killing of innocent women and children, who are often killed in an “up-close-and-personal” way in land operations. Though it is well known that naval blockades can lead to hundreds of thousands of civilian deaths, and indeed that they can 95 97

Scott (1921, Volume 3, 783). Davis (1976, 229).

96

Scott (1921, Volume 3, 790), emphasis added.

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devastate the “social functioning” of the state,98 their costs are widely distributed among the population. Naval blockades are not imposed upon single individuals, and so even though their effects may be more devastating than land operations, they just do not seem nearly as bad. As the work of neuroscientist Josh Greene shows, it is the up close-andpersonal nature of deliberate killing that typically makes people cringe, not just the abstract thought that innocent people die in war.99 Naval blockades kill large numbers of innocent civilians, but their deaths are far more indirect and causally diffuse, and as a result, they are far less emotionally salient. Had Rose and Choate put forth more visceral emotional arguments that detailed the effects that the seizure of merchant vessels can have on civilians, perhaps their efforts to secure this proposal would have succeeded. In line with the general argument of this book, this example suggests that it is the emotional salience of deliberate attacks on civilians that underwrites the Hague Regulations on bombing and targeting. Though the great power interest clearly played a role in solidifying the opposition to Choate and Rose’s proposal, the difference in emotional salience between land and naval operations made it easier to defeat the Americans. On October 18, 1907, the Second Hague Peace Conference came to an end. Though it was clear to all that the conference had not achieved its most high-minded ideals, it was not without its successes. The conference successfully updated certain aspects of the laws and customs of war on land, it renewed the declaration against balloon-dropped projectiles, and it successfully extended some of the norms that regulate land war to naval operations. It did not pass the American proposal on the inviolability of private property on the high seas. However, it did codify a variety of other legal norms for regulating naval operations, including norms that regulate the bombing of naval ports and norms that extend protection to coastal fishermen. On the final day of the conference, several delegates voiced an interest in convening a third conference – an issue that was discussed at length during the final plenary sessions. In a bit of historical irony, World War I prevented this from happening. Perhaps even more ironic was one of the parting statements of the conference. In this parting speech, William de Beaufort, a delegate from the Netherlands, asked to bid farewell by saying au revoir instead of adieu, because au revoir “implies the hope of a personal meeting.”100 “Permit me to say au revoir, and to join to it the voeu that the Conference of 1907 will open an era of peace … which will last … until the next … 98 100

99 Scott (1921, Volume 3, 784). Greene (2013); Greene (2008); Greene (2005). Scott (1921, Volume 1, 585–586).

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conference.”101 Unfortunately for the many millions who would perish in World Wars I and II, this hope would never come to fruition. On the Edge of Destruction: The Laws of War and Strategic Bombing in World War II Strategic bombing in World War II is often seen as an example of how the laws of war fail to constrain wartime violence. For example, Alexander Downes argues that despite the recognition that targeting civilians is illegal and immoral, states have deliberately targeted civilian populations. Along with examining the use of starvation tactics in World War I and scorched earth tactics during the Boer Wars, the strategic bombing campaigns of World War II are among the core examples he uses to understand why states kill civilians in war.102 If the Hague Peace Conferences of 1899 and 1907 were intended to institute a new era of humanized warfare, one that would serve “the interests of humanity and the ever progressive needs of civilization,”103 then why did states target civilians in World War II, and how did legal and moral considerations shape their practices, if, in fact, they shaped them at all? In this section, I argue that even though states did kill a large number of civilians in World War II, and many of them on purpose, the laws of war as they existed at the time affected some strategic bombing policies, especially in the European theatre. Second, I argue that cognitive-emotional biases, particularly the intention/side-effect distinction, and legal norms on the targeting of military installations discussed earlier shaped the negotiations over the Hague Rules of Air War in 1923. Although these rules were never formally ratified, some states, particularly the United States, came to regard them as approximating the “accepted practice of nations.”104 I conclude by briefly examining how moral and legal considerations regarding intentionality and lawful military targets shaped Allied strategic bombing policies in the European theatre of World War II. The Hague Commission of Jurists and the 1923 Draft Rules on Aerial Warfare As recent debates on drone warfare indicate, new developments in military technology can often lead to intense debates over whether and 101 102 103 104

Scott (1921, Volume 1, 585–586). Downes (2008). Also, see Valentino et al. (2006). Hague Convention IV of 1907: http://avalon.law.yale.edu/20th_century/hague04.asp. Myron Cramer, the Judge Advocate General to Joint Chiefs of Staff (JCS), September 22, 1943. “Recognition of Rome as an Open City.” Geographic File (GF), 1942–1943. Records of the JCS (RJCS), RG 218, Box 183, USNA.

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how such technologies should be regulated.105 New technologies can sometimes render existing laws of war obsolete. The ability to drop bombs from the air not only changed the strategical and tactical situation that armed forces confront by making it possible for military forces to fly over the frontlines in an effort to devastate the home front, but it also put pressure on existing laws of war that were created primarily for artillery munitions that operate to further the objectives of ground forces. The ability to strike behind the battlefront means that states can hit militarily significant objectives (e.g., command and control centers, arms depots, barracks, munitions factories, etc.) without first defeating enemy forces on the battlefield. Indeed, air power theorists believed that the ability to do this would aid ground forces by preventing enemy forces from resupplying men and materiel, which would allow states with air superiority to gain a decisive military advantage on the battlefield. While international lawyers could not have predicted the depth to which European politics would sink by 1939, they had a prescient sense of where the world was headed with respect to aerial warfare technologies.106 As I discussed earlier, as early as 1899, the international community had agreed to temporarily ban the use of balloons for dropping projectiles on enemy cities, a declaration that was renewed in 1907, but, for reasons that I discussed earlier, was never made permanent.107 If there were any lingering doubts about the level of destruction that aerial bombardment could cause, the German Zeppelin and Gotha raids of World War I, which killed an estimated “1,400 Britons and injured 3,400 more,” laid them to rest.108 As with the 1899 conference, the post-World War I conferences on the laws of war were initially rooted in concerns for arms control. On August 11, 1921, US President Warren Harding issued a formal invitation to Great Britain, France, Italy, and Japan to participate in a conference on the limitation of armaments. In the invitation, the Harding administration said that the rationale for limiting the production of arms had to do not only with the fact that arms races are a persistent “menace to the peace of the world,” but that they impose a substantial burden on public funds.109 Along with the focus on arms control, the letter stipulated that it was “also … advisable to formulate proposals by which, in the interest of humanity, the use of new agencies of warfare may be suitably controlled.”110 The Washington conference did succeed in developing an 105 107

108 110

106 O’Connell (2010). See Biddle (2002, chapter 2). The 1907 conference technically renewed this declaration until the conclusion of a planned third peace conference. However, this planned third conference never took place. 109 Grayling (2006, 126). Conference on the Limitation of Armament (1922, 4). Conference on the Limitation of Armament (1922, 4).

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agreement on restricting the use of chemical weapons in war, but as US Ambassador John Bassett Moore explained, “This [was] as far as the conference found it possible to go in the treatment of new agencies of warfare,”111 chief among them airplanes. As a result, the United States, Great Britain, France, Italy, and Japan passed a resolution that called for putting together a commission that would address the problems surrounding the application of international law to air technologies and radio communications. The resulting Hague Commission of Jurists was tasked with answering two key questions: (1) whether existing international laws “adequately covered ‘new methods of attack or defense’”; and (2) “what changes in existing rules ought in consequence to be adopted as a part of the laws of nations.”112 The Commission of Jurists met in The Hague in December of 1922, and it was composed of representatives from six countries: the United States, Great Britain, Italy, France, Japan, and the Netherlands. To ease their work, the Commission was broken up into two subcommittees: one that focused on radio communication, and another that focused on aircrafts.113 With respect to the issues of bombing and the rules of war, the Commission addressed at least two main questions. First off, how should legitimate targets be distinguished from illegitimate targets? Second, when, if ever, is it permissible to expose civilians to the risk of injury and death, and what principles should govern bombing operations that generate civilian casualties and destroy civilian property? All delegates to the Commission agreed that it is impermissible to bomb civilians for the purpose of spreading terror or destroying property not of a military character, and so Article 22, which directly prohibits these practices, was easily negotiated.114 However, they disagreed on the precise conditions under which it can be permissible to hit military targets when civilian lives are at stake. According to John Bassett Moore, the head of the American delegation and the President of the Commission, it was “generally admitted that the fact of being ‘defended,’ which exposes cities and towns to bombardment by land forces, was altogether inadequate and insufficient as a test of the liability to bombardment by air forces.”115 The reasons for this are somewhat striking, and they relate not just to the distinctness of air warfare technologies but also to the moral considerations that govern military operations. Moore argued that when cities are liable to artillery bombing by land forces, the bombings are “general,” and that legal exceptions “made in favor of hospitals, 111 113 115

112 Moore (1924, 184–185). Moore (1924, 185). 114 Commission of Jurists (1923). Commission of Jurists (1923, 198). Moore (1924, 194).

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monuments of art, and other privileged buildings” are often “ineffective in practice.” Airplanes, however, have the ability, at least in theory ca. 1922–1923, to hit “directly distinctive military objectives,” and they can do this “without generally bombarding the city, town, or community in which such objectives are situated.”116 It was the supposed precision of airstrikes that rendered the previous restrictions on legitimate targeting obsolete. The Commission of Jurists considered three proposals for regulating bombing campaigns: a British, an American, and an Italian proposal. Not unsurprising given the zeal with which British airmen would pursue area bombing against the Germans in World War II, the British proposal was perhaps the most permissive. It held that “aerial bombardment is legitimate only when directed at a military objective,” and that air force commanders are “bound to take all reasonable precautions that the bombardment is confined” to military targets.117 However, it stated that such commanders would incur “no responsibility for any unavoidable damage which may result from the legitimate bombardment of a military objective in the vicinity.”118 The American proposal sought to protect civilians by distinguishing between combat zones and noncombat zones. In combat zones, or areas of “active hostile operations between the land forces of belligerents,” “all buildings, except those specially privileged,” would be liable to attack.119 Specially privileged buildings include hospitals, places of worship, historical and artistic monuments, and so forth. In noncombat zones, states cannot hit civilian dwellings or buildings, but they can target “enemy forces, lines of communication and transportation, military or naval establishments, depots of arms or war material, workshops, plants, and factories used for the manufacture of war material, wherever situated.”120 The Italians, on the other hand, proposed a far more restrictive understanding of legitimate bombing operations. With the exception of adding railway stations to the list of military objectives that states could permissibly target, the Italian view of lawful military objectives was very similar to the American view. However, the Italian proposal adopted a much more restrictive interpretation of the rules that armed forces should follow in combat and noncombat zones. In combat zones, the Italian proposal held that states can hit military objects if there is a “reasonably justifiable presumption” that they are “sufficiently important.”121 116 118 120 121

117 Moore (1924, 195). Commission of Jurists (1923, 167). 119 Commission of Jurists (1923, 167). Moore (1924, 195). Moore (1924, 195). Also, see Commission of Jurists (1923, 157). Commission of Jurists (1923, 102).

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In noncombat zones, however, it held that states can hit military objects only if “no hurt is suffered by the civilian population.”122 Though such a rule would almost certainly have outlawed strategic bombing, given the interest that some states, particularly the United States and Great Britain, had in developing long-range bombing capabilities, this provision was destined to fail. On February 12, 1923, after roughly five hours of negotiations, the United States agreed to combine its proposal with a condensed version of the Italian proposal, which was then accepted as Article 24 of the Hague Draft Rules. This article stipulated that “aerial bombardment is legitimate only when directed at a military objective,” i.e., “an object of which the destruction or injury would constitute a distinct military advantage to the belligerent.”123 Lawful targets included armed forces, military command and control centers, lines of communication, and munitions and supply factories. Further, Article 24(3) prohibited the bombing of “cities, towns, villages, dwellings, or buildings not in the immediate neighborhood of the operations of land forces,” and it also prohibited attacks on military objectives in these areas that “cannot be bombarded without the indiscriminate bombardment of the civilian population.” Finally, Article 24(4) held that in “in the immediate neighborhood of the operations of land forces,” there has to be “a reasonable presumption that” attacks on legitimate military targets are “sufficiently important to justify” endangering the civilian population.124 In contemporary discussions of the laws of war in air operations, scholars often dismiss the 1923 Commission of Jurists as an abject failure. Jochnick and Normand argue that “the conference was doomed from the start. Unlike the…diplomats who drafted the previous laws of war, these jurists lacked adequate appreciation for the political, economic and military realities underlying wartime practices. Animated by excessive faith in the power of positive law, they drafted rules that placed unprecedented limits on sovereign power and prohibited any effective use of aircraft in war.”125 In addition, military lawyer W. Hays Parks argues that the likely reason for why no states ratified the 1923 Rules had to do with “skepticism towards the laws of war … during the interwar period,” not to mention the fact that they were created by overly idealistic lawyers, who had attempted to “draft a set of rules that were totally at odds with state practice, technological advances, and military thinking.”126 122 123 124 125

Commission of Jurists (1923, 102) and Moore (1924, 198). Source: www.peacepalacelibrary.nl/ebooks/files/TheHagueRulesofAirWarfare.pdf. Source: www.peacepalacelibrary.nl/ebooks/files/TheHagueRulesofAirWarfare.pdf. 126 Jochnick and Normand (1994, 83–84). Parks (1990, 31).

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Though it is unclear why these rules, or rules like them, were never ratified, this pessimistic characterization of the 1923 Hague Rules is misleading. True, the 1923 Hague Rules were never ratified by the great powers or any other states. But only six states participated in the proceedings, a number far below what would be required for negotiating a formal treaty on an issue as relevant to the international community as the laws of war. Also, the objective of the Commission of Jurists was never to create a treaty, but rather it was to determine whether extant rules adequately covered new military technologies and to determine whether any changes needed to be made. In addition, first-hand accounts dispute the claim that these rules were overly idealistic or inconsistent with the existing military practices of states and international law. In contrast to Park’s view that the Hague Commission was dominated by idealistic lawyers with little to no military training, US delegate Rear Admiral William Rodgers observed that military and technical advisers played a significant role in the negotiations and that “the drafts as finally agreed to in the plenary session … were … practicable and reasonable as guides and limits to combatant effort.”127 With respect to bombing operations, Rodgers noted that the 1923 Hague Rules were consistent with existing law: “The essential thing was that the belligerent effort should be directed against objectives whose … destruction was in accordance with the principles of warfare already accepted …. The rules for bombardment from the air as agreed upon by the Commission violate none of these hitherto accepted principles.”128 One possible reason as to why the 1923 Hague Rules were never crafted into a formal treaty is because they sought to maintain the distance between the home front and the warfront, especially in Article 24. According to paragraph (3), states are prohibited from indiscriminately bombing the civilian population when they target military objectives. According to J. M. Spaight, the most plausible way to interpret “indiscriminate” in this paragraph is that it prohibits the targeting of military objectives when the incidental destruction imposed on the civilian population is no different from what it would otherwise be if the destruction in question were intended to be indiscriminate.129 For Spaight, the main problem with the 1923 Hague Rules was that they relied on a highly impractical distinction between military and civilian targets. In Air Power and War Rights, Spaight argued that unless the rules of air warfare were pragmatic, they would not succeed in restraining the 127 128 129

Rodgers (1923, 634). Rodgers (1923, 635–636), emphasis added. Also, see Hanke (1993, 37–40). Spaight (1924, 217).

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practices of air commanders, who would use airstrikes to hit economically significant, nonmilitary property. The best way to limit the violence of aerial warfare was to regulate it with norms that are workable in practice, and as such he thought that “the right to bombard certain categories of purely civilian property should be recognized and regulated.”130 In effect, this meant blurring the line between the warfront and the home front – a line that was repeatedly breached during World War II. Nevertheless, in the following section, I argue that legal and moral rules did sometimes affect Allied bombing policies during World War II. Though it is quite clear that the most devastating attacks of the Allied bombing campaigns, e.g., the bombing of Hamburg in 1943 and the bombings of Dresden, Tokyo, Hiroshima, and Nagasaki in 1945, violated the most stringent principles of the 1923 Hague Draft Rules,131 what is striking about Allied strategic bombing and the moral justifications that decision-makers often put forth, is the degree to which they were not only consistent with some of the legal norms that existed at the time, but also informed by them as well. Using specific examples, I make three key claims. First, I claim that international laws regarding the protection of civilian objects, including places of worship and historic and artistic monuments did sometimes affect Allied military operations, as did laws concerning the protection of open cities. Second, I show that the Allies had two different ways of thinking about civilian casualties: (1) in occupied countries such as Belgium, they used proportionality considerations to justify attacks that caused mass civilian fatalities; and (2) in Axis countries such as Germany they saw civilian morale as a legitimate military target. Finally, actual civilian deaths were not always perceived as the object of strategic bombing operations, but rather they were often justified as incidental side-effects of attacks on lawful military targets. This suggests that cognitive-emotional heuristics concerning the ethics of killing in war did sometimes affect military practices, albeit in a way that justified exposing civilians to heightened risks. Once More unto the Breach: The Laws of War and Bombing Policy in World War II In a crisp assessment of the vague line that separates peace from war, Rear Admiral William Rodgers, the technical advisor to the American 130 131

Spaight (1924, 240). In a 1950 State Department Policy Planning Staff report on “Bombing Civilians,” it is argued that although the US generally refrains from indiscriminate killings of civilians, Japanese allegations of indiscriminate attacks during World War II were “consistent enough with the facts” (71). RG 59, Historical Studies Division, Research Projects, 1945–1954, Box 10. USNA.

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delegation at the 1923 Commission of Jurists, pointed out that international conventions are “drawn up in peace under the rule of reason and of emotional reactions at variance with the emotions of war. When war breaks out, even neutral nations pass under control of another set of emotions, of the most intense nature, those of war and self-preservation, and all belligerents make light of rules which are not in conformity, or at least do not conflict too violently, with primitive mass emotions.”132 Although this description of the difference between war and peace is apt, it obscures the fact that the moral and legal considerations that shape the development of the laws of war do affect how states act in war, if not through strict compliance, then through rhetorical justification. Even during the American Civil War, which historians often see as ushering in the modern doctrine of total warfare, Union forces did observe restraints in how they treated Southern civilians.133 Union attacks were directed primarily at civilian property rather than civilian lives, and they did observe a distinction between loyal civilians and secessionists.134 During World War II, Allied forces killed an estimated 600,000 civilians in the air campaigns over Europe, a policy that would be emulated in Japan where US firebombing killed hundreds of thousands of civilians and culminated in the nuclear attacks on Hiroshima and Nagasaki. To some extent, the goal of the strategic bombing campaigns was to destroy standard military targets, such as the German Air Force, German military communications systems, munitions factories, and so forth. Yet, the most notorious goal of the bombing campaigns was to destroy the ability of the enemy to wage war by decimating civilian infrastructure and undermining civilian morale, in other words, to win the war by provoking a political, economic, and social collapse. With respect to the laws of war, Allied policy went through several stages. In a parliamentary speech at the beginning of the war, Neville Chamberlain famously stipulated that it was against British policy to target civilians, a view that was shared by President Franklin Roosevelt. Indeed, at the beginning of the war, Great Britain had issued rules for restricting aerial warfare to clearly identifiable military objectives. Not only did these rules hold that intentional bombing of civilians was illegal but they also held that the British would adhere to the 1923 Hague Rules for Aerial Warfare, even though the latter had never been ratified.135 The regulations even stipulated that an attack on military objectives was not obviously legal: If bombing military objects involved creating “risks to the civil population out of all proportion to the military importance of the 132 134

133 Rodgers (1923, 639). Grimsley (1995) and Neely (2004). 135 Grimsley (1995) and Neely (2004). Overy (2013, 33–34).

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target,” then it “might thus be unjustifiable.”136 However, on May 31, 1940, the Chiefs of Staff Committee wrote a report advising the war cabinet to revise its policy on air bombardment. The report reiterated the existing policy that civilian targets were not to be intentionally bombed, but it drastically expanded the scope of the concept of a legitimate military target. It specifically included as legitimate targets “shipyards, factories and other establishments engaged in” manufacturing “military material.”137 The revised rules also stipulated that as long as civilians are not deliberately targeted, and as long as bombing attacks are executed “with reasonable care to avoid undue loss of civil life in the vicinity of the target,” it is permissible to attack any other objective, “the destruction of which is an immediate military necessity.”138 Thus, under the guise of seeming to respect principles of civilian immunity, the Allies justified their attacks on enemy cities by redefining what it was to be a lawful target. By February 1942, the RAF had explicitly adopted city bombing as its strategy of choice.139 As historian Richard Overy observes, “The ethical restraints imposed at the start of the war…eroded step by step as a result of the decision to initiate ‘unrestricted’ bombing of targets in urban areas.”140 Unlawful Targets: Legal Protections for Cultural Objects in World War II. In terms of assessing compliance with the laws of war, one thing that must be kept in mind is that with respect to aerial operations, the laws of war were not nearly as well developed as they are today. But even though no states had ratified the 1923 Hague Rules, a letter by Judge Advocate General Myron Cramer suggests that these rules reflected “the accepted practice of nations,” which in turn said that aerial bombings should be “confined to what have been considered by the attacking forces to be ‘military objectives.’”141 The selection of military targets was informed mainly by the political and military objectives that the Allies were hoping to achieve with strategic bombing. The primary objective of the Combined Bomber Offensive of the United States and the United Kingdom was to destroy the German military and all its supports, including the industrial and economic systems and the morale of the civilian population so that its “capacity for armed

136 137 138 139 141

Source: http://filestore.nationalarchives.gov.uk/pdfs/small/cab-66-8-wp-40-186-16.pdf. Source: http://filestore.nationalarchives.gov.uk/pdfs/small/cab-66-8-wp-40-186-16.pdf. Source: http://filestore.nationalarchives.gov.uk/pdfs/small/cab-66-8-wp-40-186-16.pdf. 140 Biddle (2014, 41). Overy (2013, 42). Myron Cramer, “Recognition of Rome as an Open City.”

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resistance [was] fatally weakened.”142 Of course, this involved the targeting of economic and industrial objects that would inevitably lead to a high civilian death toll. But the primary consideration in target selection was the effect this would have on the German military. Yet, there were some targets that were clearly off-limits for deliberate attack, particularly religious, cultural, historical, and artistic objects. Legal protections for cultural objects did not prevent the Allies from bombing culturally significant cities (e.g., Rome),143 but they did influence how Allied commanders weighed their options. First, when it came to protecting culturally significant cities such as Rome the United States took efforts to ensure that its bombing policies would be consistent with the laws of war. According to Overy, “the idea of bombing” Rome “went back to the start of the war, but was postponed again and again on political, cultural, and religious grounds.”144 However, in the summer of 1943, as the Allies prepared for an invasion of Sicily, “[t]he long hesitation over whether or when to bomb Rome was finally ended,” in favor of an attack on “two important rail marshaling yards at Littorio and San Lorenzo, the second close to the ancient basilica of the same name.”145 Prior to granting approval of the raid, Franklin D. Roosevelt told Churchill that he was “wholly in agreement”146 with the plan provided that “the crews were given the strictest instructions to avoid dropping bombs on the Vatican or on papal property.”147 When the resulting attack caused “heavy damage to the Basilica of San Lorenzo,” the Combined Chiefs asked Eisenhower “to publish a communique … attesting to the fact that only military objectives had been hit, in order to avoid accusations that the ‘Shrine of Christendom’ had been violated.”148 Furthermore, legal considerations played a key role in the debate over whether to recognize Rome as an open city. In international law, an open city is one that is undefended, which means that it is immune from attack as long as the belligerents recognize it as open.149 On August 14, 1943, Italy unilaterally declared Rome an open city. Upon receiving this information, the Combined Chiefs of Staff (CCS) ordered General Eisenhower to make no further attacks on the city.150 In a meeting on August 15, the CCS decided against recognizing Rome as an open city. From a military perspective, the concern was that doing so would hamper Allied war efforts after capturing Rome. When a city is recognized as open, 142 143 146 148 150

Combined Chiefs of Staff(CCS), Plan for the Combined Bomber Offensive, May 14, 1943. GF, 1942–1945. RJCS, RG 218, Box 64, USNA. 144 145 Overy (2013, 318–360). Overy (2013, 333). Overy (2013, 334). 147 Quoted in Overy (2013, 334). Overy (2013, 334). 149 Overy (2013, 335–336). DOD (2016a, 279). From KKADC to Freedom, USFOR, and War, August 14, 1943. GF, 1942–1943. RJCS, RG 218, Box 183, USNA.

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it is ceded to the enemy, and thereby demilitarized. According to Sir Charles Portal, the British Chiefs of Staff believed that recognizing Rome as an open city would cause too many difficulties “for the Allies …. It might be preferable that we had Rome in our possession to use its communications and to risk German bombing.”151 Evidently, they also believed that the standstill to Eisenhower should be revoked, which it later was. On September 17, 1943, the Combined Chiefs of Staff decided to have the Joint Strategic Survey Committee (JSSC) examine the advantages and disadvantages of recognizing Rome as an open city, a study that drew upon the advice of military lawyer Myron Cramer. The resulting report held that merely declaring that a city is “open” is insufficient to render it immune from attack: From the standpoint of international law we understand that there is no rule of law which confers immunity from attack upon a town merely because it has been declared an “open city.” The criterion on whether or not a city is subject to attack is whether or not it contains legitimate military objectives. Among these are the communication and transportation systems passing through the city.152

Even though the United States and Great Britain decided that it was not advisable to recognize Rome as an open city,153 the fact that they considered the legal implications of doing so is telling. It suggests that the Allies did sometimes take legal considerations into account in determining which cities and targets to bomb – the main consideration was whether the city in question contained lawful military targets. Moreover, a closer analysis of the decision on whether to recognize Rome as an open city indicates that the laws of war actually influenced the decision in favor of not recognizing it as an open city. There were conflicting political and military issues regarding whether Rome should be recognized as an open city. Politically, recognizing Rome as an open city would improve the reputation of the Allies in the eyes of Catholics, since it would spare sacred objects from unnecessary damage. Yet, militarily recognizing Rome as open could hamper Allied operations upon taking the city.154 Since open cities have to be demilitarized, it was the military implications of the laws of war that shaped Allied decision-making, and not just the military implications per se. 151 152 153 154

108th Meeting of the CCS, “Rome an Open City, C.C.S. 306.”GF, 1942–1943. RJCS, RG 218, Box 183, USNA. Report of the Joint Strategic Survey Committee, Enclosure “A” of report by the CCS, “Rome as an Open City.”GF, 1942–1943. RJCS, RG 218, Box 183. USNA. For a useful discussion of the legal and military issues of recognizing Rome as an open city, see Elkin (1980). Meeting of the JCS, November 15, 1943. GF, 1942–1943. RJCS, RG 218, Box 183. USNA.

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Despite the fact that the bombing caused significant damage to “Italy’s ancient heritage,”155 the Allied forces, in particular the United States, took a more restrictive approach to protect cultural objects, save for situations when imperative military necessities required exposing them to heightened risks. On December 29, 1943, General Eisenhower famously issued the following instructions to his men: Today we are fighting in a country which has contributed a great deal to our cultural inheritance, a country rich in monuments which, by their creation, helped and now in their old age illustrate the growth of the civilization which is ours. We are bound to respect these monuments so far as war allows. If we have to choose between destroying a famous building and sacrificing our own men, then our men’s lives count infinitely more and the buildings must go. But the choice is not always so clear-cut as that. In many cases the monuments can be spared without any detriment to operational needs. Nothing can stand against the argument of military necessity. That is an accepted principle. But the phrase “military necessity” is sometimes used where it would be more truthful to speak of military convenience or even of personal convenience. I do not want it to cloak slackness or indifference.156

According to William Leahy, the chairman of the Joint Chiefs of Staff, Eisenhower’s instructions were “clearly and fully enunciated in accordance with existing agreements and customs,” by which he seems to have meant international law.157 When property was destroyed or civilians were killed, Allied decision-makers noted that such costs were an inevitable consequence of war. For example, in a telegram to the US War Department on May 16, 1944, Allied Force Headquarters in Algiers responded to Vatican concerns about an attack on a supply convoy by claiming that civilian deaths and property destruction were unintended.158 Similarly, the Allies justified the attack on the Abbey of Monte Cassino by claiming that German forces had occupied the Abbey, and that it was therefore a legitimate military target. Although this judgment turned out to be highly questionable, some commentators argue that it was an “honest mistake.”159

155 156

157 158 159

Overy (2013, 318). Quoted in letter from William D. Leahy, Chairman of JCS, to H. R. Stettinius, Acting Secretary of State, March 15, 1944. Central Decimal File (CDF), 1942–1945. RJCS, RG 218, Box 380. USNA. William D. Leahy, Chairman of JCS, to H. R. Stettinius, Acting Secretary of State, March 15, 1944. Letter from Allied Force Headquarters to War Department, May 16, 1944. CDF, 1942–1945. RJCS, RG 218, Box 380, USNA. For a discussion of the moral ambiguities of this particular bombing, see Lee (2005, 133).

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Protecting Friends, Exposing Enemies: Allied Justifications for Civilian Casualties. The Allies followed two different tracks when it came to civilian casualties. With respect to territories occupied by Axis forces, they were concerned about potentially alienating the civilian population or their diplomatic representatives, and so they were more restrictive when it came to selecting targets, and in some cases they based their policies directly on legal considerations. This is evidenced by the fact that when property was destroyed or civilians were killed, Allied decision-makers took efforts to explain that the resulting deaths were an unfortunate, but incidental effect of aerial bombing. For example, on April 5, 1943, the United States bombed an Erla Works factory in Antwerp, Belgium that was believed to be used for repairing singleengine planes.160 In response, the Belgian Ambassador wrote a letter to the US Secretary of State which argued, in essence, that the bombing violated the principle of proportionality. However, the Joint Chiefs of Staff rejected the assessment that the Erla Works factory was too insignificant to justify civilian casualties. Although the civilian deaths were regrettable, they “could not have been avoided.”161 In a letter to the US Under Secretary of State that spelled out a suggested reply to the Belgian Ambassador, the Joint Chiefs of Staff articulated the American theory of strategic bombing in occupied territories: The American theory and technique of bomber employment are so designed as to permit, with minimum waste of effort, the ultimate efficiency in the destruction of actual installations which are of real assistance to the enemy war-making ability. Applied to bombing in Axis occupied countries, this technique tends to cause less extraneous destruction outside the targets themselves, and the American Air Forces have demonstrated…increasing ability to restrict civilian damage while accomplishing the desired purpose. Some civilian casualties cannot be avoided, but the attainment of even a part of the possibilities of this technique reduces materially the risk to nearby populations.162

As this passage indicates, the United States was concerned with the negative consequences of aerial bombing on the civilian population in Axis-occupied territories. However, it was not so concerned about these effects on the civilian population in Axis countries themselves. One primary objective of strategic bombing was to undermine the morale of 160 161

162

JCS Report, “Bombing of Antwerp by American Air Forces on April 5, 1943.”GF, 1942–1945. RJCS, RG 218, Box 14, USNA. Vice Admiral F.J. Horne to Under Secretary of State Sumner Welles, May 27, 1943. Enclosed in JCS Report, “Bombing of Antwerp by American Air Forces on April 5, 1943.” GF, 1942–1945. RJCS, RG 218, Box 14, USNA. “Suggested General Content of the Reply to the Belgian Ambassador.” Enclosed in JCS Report, “The Bombing of Antwerp by American Air Forces on April 5, 1943.”

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the civilian population so that their will and capacity to resist was decisively weakened. As the US Strategic Bombing Survey pointed out after the war, “among the great majority of professional military men, and among other citizens as well, morale” is a “primary target … of attack and an essential consideration in the organization of defense.”163 Coupled with the fact that German and Japanese cities were not undefended, and hence could claim no legal recourse for immunity from bombing, this meant that the civilian population within them had very few legal protections available. From a legal or moral perspective, one might argue that since it is impossible to undermine morale without thereby forming the intention to kill civilians, Allied bombing practices violated international law.164 Indeed, prior to World War II one clear target that belligerents could not hit intentionally were civilian persons, provided, of course, that they do not take up arms. However, civilians could be killed incidentally as long as their deaths were not unreasonably high in relation expected military gains. Interestingly enough, not only did belligerents believe they had the right to target factories that produced implements of war but they also apparently believed that they had the right to target civilian morale. For example, the British Manual of Military Law stated that the “destruction of private and public buildings by bombardment has always been, and still is, considered lawful, as it is one of the means to impress upon the local authorities the advisability of surrender.”165 The 1923 Hague Draft rules did stipulate that states are not allowed to bomb civilians “for the purpose of terrorizing” them,166 but there is a slight difference between terror and morale.167 Civilian morale has to do with the willingness to carry on a war effort, not just the psychological emotion of terror, and it can be influenced in a wide variety of ways, including battlefield defeat, the loss of food and other resources, or the loss of loved ones. In World War II, morale was regarded as a “vital weapon in the German arsenal,” and so the Allies believed that it was “an important target.”168 Interestingly, during the interwar period, some influential commentators even believed that it might be possible to target economic objectives and enemy morale without causing significant death and destruction. In Air Power and War Rights (1924), British writer J. M. Spaight argued that states can legitimately undermine morale only if actual civilian deaths are a minimal and unintended side effect: 163 165 166 168

United States Strategic Bombing Survey (1947b, 9). Quoted in Parks (1990, 39). Hague Draft Rules of Air Warfare (1923, Article 22). United States Strategic Bombing Survey (1947a, 7).

164 167

Grayling (2006). See Parks (1990, 32).

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If air forces could destroy property without incidental loss of life, the answer would be easy. Unfortunately, loss of life is to be apprehended, and the problem is how to frame a rule in such a way as to prevent that loss, or at least to reduce it to a minimum; in other words, how to reconcile the demands of air power and those of humanity …. If air forces cannot carry out the devastation of property without great incidental loss of life – one cannot for the moment, speak more precisely – then clearly … international law must step in to prohibit a method of warfare which would bring us back to the days of Tilly and Pappenheim. If, on the other hand, some but not an excessive loss of life can be shown to be involved in operations which will enormously abbreviate the periods of wars and will reduce to a comparatively trivial total the casualty lists and the huge but incalculable sum of indirect losses consequent upon hostilities, then it is submitted that humanity will gain and not lose from the recognition of the legitimacy of the new method.169

The upshot is that states can seek to undermine the morale of the civilian population by bombing specific military and economic objectives – on the condition that civilian deaths are both incidental and less than would be expected with a longer war. Though motivated by humanitarian sentiments, this opens the door to quite a lot of wartime destruction, for it is impossible to know for sure whether the number of deaths that result from strategic bombing are in fact lower than the number of deaths that would have resulted from more restrained methods. But even though Spaight believed it was legally permissible to bomb economic targets that could depress enemy morale, he drew a distinction between civilian property and civilian lives. It is one thing to destroy property, but killing people is something entirely different: “There is nothing whatever ‘sacred’ about private property in war but … there is [something sacred] about flesh and blood not in arms nor lethally engaged.”170 The kind of strategic campaigns that Spaight envisioned would, in his view, be far more humanitarian than what war had hitherto been, which entailed the widespread killing of human beings: “War on property must replace war on life. The more effective will drive out the less effective method. Humanity will surely gain by such a change.”171 Although the high death toll of Allied strategic bombing campaigns calls into question whether it is possible to attack nonmilitary targets without causing mass civilian deaths, that Spaight makes these claims is telling for at least two reasons. First, it suggests that there were some prominent commentators who believed that it is legally permissible to bomb nonmilitary objectives as long as civilian deaths were incidental and proportionate to the military gains. Relatedly, since civilian deaths are distinct

169

Spaight (1924, 244).

170

Spaight (1925, 7).

171

Spaight (1925, 7).

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from, but related to, civilian morale, it was technically possible for air power theorists and policy makers to describe civilian deaths as unintended effects of lawful military tactics. Second, it reveals the lengths to which the advocates of air warfare were pushed to justify strategic bombing. Indeed, Spaight’s view that it is possible to hit the economic nerve centers of a state without killing scores of civilians strains credulity. Yet, like the doctrine of total warfare, his argument has a dark meansends logic: If hitting the nerve centers of an enemy state can bring it to its knees much faster than grueling battles along the frontlines, then perhaps it is in the interests of humanity to try it. To what extent did these kinds of considerations shape the thinking of the Allied air forces? Air power theorists as well as key decision-makers both believed that civilian morale is a legitimate object of war. For example, Air Marshal Hugh Trenchard of the RAF once defined military objects as “any objectives which will contribute effectively towards the destruction of the enemy’s means of resistance and the lowering of his determination to fight.”172 Furthermore, the postwar bombing surveys repeatedly indicate that the morale of the civilian population was seen as a military target, perhaps on par with industrial and economic installations. Though there were clear cases of Allied decision-makers intentionally bombing civilian locations with the express desire to kill innocent people (see Arthur Harris’s comments referenced earlier), even in these cases, bombs were dropped over cities that had no recognized legal protection, for not only were they defended but they also possessed lawful military targets. Given the lack of clarity in the rules that governed aerial warfare, it was relatively easy for Allied commanders to avoid undue legal restrictions by simply defining enemy morale as the intended object of strategic bombing. Finally, as the response to the bombing of Dresden reviewed at the beginning of this chapter illustrates, states frequently use the distinction between intended and unintended killings to try to avoid criticism for attacks that kill scores of civilians. Two conclusions can be drawn from this brief review of Allied strategic bombing in World War II. First off, despite the fact that the rules of air warfare were relatively unclear and imprecise at the start of World War II, the laws of war did sometimes shape Allied doctrine and policy during the course of the war. Not only did the Allies generally avoid deliberate attacks on cultural objects, but so too they used proportionality considerations to excuse bombing raids that exposed civilians in Axis-occupied countries to higher risks. In Axis countries, civilian morale was seen as a 172

Quoted in Meyer (2001, 157). For commentary on Trenchard’s influence on British air war policy during World War I and the Interwar period, see Biddle (2014, 32–38).

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military objective that rested on a wide variety of factors, only one of which was civilian casualties. Morale could be undermined by “de-housing” civilians or killing them, but it could also be undermined by creating a refugee crisis or by stifling German advances on the battlefield. But since it is impossible to undermine morale without also killing scores of civilians, the fact that civilian morale was seen as a legitimate object meant that morale bombing would lead to significant fatality rates, regardless of whether these deaths were intentional or not. Consistent with the general argument of this book, these considerations suggest that even though the laws of air warfare during World War II were generally imprecise, they created restrictive and permissive restraints. Secondly, even in those cases where the laws of war generated permissive restraints, moral intuitions concerning intended harms paradoxically affected targeting policy, and it did so at two different levels. First, moral intuitions shaped targeting policy by affecting the historical evolution of the idea of lawful military targets during the negotiations on the Hague Regulations. Secondly, they influenced how United States and British decision-makers justified their policies to the public, and, for some policymakers at least, to themselves. Despite the fact that some decision-makers, e.g., Arthur Harris, seemed to inherently desire to kill civilians, some of them did not, and as a result they made efforts to publicly justify civilian terror as an incidental side effect to their operations.173

Conclusion British Admiral Lord Fisher, a delegate at the 1899 Hague Conference, is once said to have made the following comments about the need to humanize war: “The humanizing of war!…You might as well talk of humanizing hell! … As if war could be civilized! If I’m in command when war breaks out, I shall issue my orders: ‘The essence of war is violence. Moderation in war is imbecility. Hit first, hit hard, and hit anywhere.’”174 While the Hague Regulations were designed to explicitly reject the total war idea that states can “hit anywhere,” as I have argued in this chapter, the moral intuitions that diplomats used to construct the laws of war still left civilians substantially exposed, thereby providing 173

174

Why did Harris have this attitude? Richard Overy explains that Harris “held an exceptional hostility to the Germans, which made it possible for him not only to run a campaign of city bombing with high civilian casualties in mind, but also to relish, in his own…words, ‘this lethal campaign,’” (2013, 91). Quoted in Eyffinger (1999, 257).

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legal loopholes that would allow state officials to evade accountability. States developed the Hague Regulations in an effort to restrain the untoward consequences of war. But in order to do this they utilized emotion-based moral intuitions such as the intention/side-effect distinction to design the principles of international law. The intention/side-effect distinction played an important role in the development of the concept of lawful military targets, and it also played a crucial role in limiting the ban on the dropping of explosives from balloons, which, in turn, opened the way for the further development of aerial warfare technologies. Given the expansiveness of the definition of a lawful military target – both prior to and during World War II – the degree to which the law could effectively safeguard civilians from incidental suffering was relatively minimal. In the aftermath of World War II, states eventually developed stricter limitations on the use of military force, especially the Geneva Conventions of 1949 and the Additional Protocols of 1977. In the following chapter, I analyze the argumentative strategies that the United States and its allies used to construct the restrictive and permissive restraints of IHL in the aftermath of World War II. The 1949 Geneva Conventions were developed to extend certain protections to the victims of war, particularly civilians and POWs. Nevertheless, the United States and its allies tried hard to ensure that useful military practices and technologies would never be outlawed. Indeed, in the following chapter, I show that even though practices such as carpet-bombing were eventually prohibited, the legal provisions that were created to protect the civilian population against strategic bombardment had few implications for the one weapon that made its debut at the end of World War II and would dominate Cold War international politics for the next generation to come: the nuclear bomb.

7

A Moral Revolution in the History of Humankind The Geneva Conventions and the Politics of International Humanitarian Law, 1945–1977

On August 9, 1949, three days before the signing of the Geneva Conventions, Dr. Pedro de Alba, the Head of Delegation for Mexico, tabled a draft resolution at the conference on the Geneva Conventions to include a statement that affirmed the desire of the High Contracting Parties to resolve their disputes peacefully, “so that peace shall prevail on earth forever.”1 In an effort to make it known to the world that “harmony and good faith reigned at the Diplomatic Conference at Geneva,”2 Dr. de Alba included a sentence in his resolution declaring that the Geneva Conventions had been created in a spirit of “unfailing cooperation.”3 In response, a Soviet delegate claimed that “it is impossible to describe the conditions under which the Geneva Conventions were drafted” as harmonious or cooperative. As proof, he referenced a series of failed Soviet provisions that, had they been accepted, would have spared the victims of war “useless suffering.”4 Among these provisions was a resolution to protect civilians “against all methods of mass extermination,” including nuclear weapons. Perhaps in an effort to maintain a semblance of harmony, Dr. de Alba retracted his description. This statement thereby stricken, the resolution passed unanimously. Although buried deep in the documentary records of the diplomatic conference at Geneva, this exchange beautifully captures the image and reality of international humanitarian law. Aside from the UN Charter, the Geneva Conventions are among the most well-respected treaties in contemporary international politics. Indeed, in his Nobel Prize acceptance speech in 2009, President Barack Obama received an ovation when he reaffirmed America’s commitment “to abide by the Geneva Conventions” in the war against terrorism, claiming that “we lose ourselves when we compromise the very ideals that we fight to defend.”5 In the popular imagination, the Geneva Conventions seem to reflect an 1 2 4

Federal Political Department (FPD) (1949, Volume 2-B, 511). 3 FPD (Volume 2-B, 510). FPD (1949, Volume 3, 177). 5 FPD (1949, Volume 2-B, 511). Obama (2009).

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overlapping consensus on the legal constraints that should govern the use of military force in international relations.6 Yet, as I hope to make clear in this chapter, the Geneva Conventions and the Additional Protocols are political constructions, designed not merely to restrict the ability of states and nonstate actors to use indiscriminate violence against the victims of warfare, but also to limit the degree to which IHL governs military decision-making in wartime. Created at the precipice of the Cold War in 1949 and updated and reaffirmed near the tail end of the Vietnam War in four diplomatic conferences between 1974 and 1977, the Geneva Conventions and the Additional Protocols set out general humanitarian principles for regulating the use of force. Although they were created in a spirit of empathy for war victims, the negotiating parties designed these treaties to allow themselves to legally utilize strategies, tactics, and weapons that incidentally threaten civilians. The Geneva Conventions were created in response to some of the most egregious human rights violations in history, e.g., Nazi atrocities and the killing and torture of POWs by Japan. But despite the best efforts of the ICRC, they ignored some of the more questionable practices of the Allied forces in World War II, particularly strategic bombing and nuclear weapons use. Of the 429 articles that make of the 1949 Conventions, not one directly prohibits the aerial bombing strategies that were used extensively by the United Kingdom and the United States. Similarly, although the negotiating parties did discuss atomic weapons, the United States, Great Britain, and Australia took measures to ensure that the conventions would not prohibit nuclear weapons use. Additional Protocols I and II of 1977 made several improvements on existing IHL, e.g., by clarifying the principle of distinction, outlawing area bombing, expanding protections for civilians in noninternational armed conflicts, and by developing laws for protecting the natural environment. However, Protocol I also introduced an important legal loophole that states can use to justify tactics that cause incidental civilian suffering: the principle of proportionality. Interestingly enough, while the principle of proportionality has a long and distinguished pedigree in Western just war doctrine, it was politically contested in the negotiations that led to Protocols I and II. Critics challenged that since it is impossible to know for sure whether military personnel intentionally try to kill civilians, the principle of proportionality would allow for plausible deniability, and therefore more deliberate attacks on civilians. In this chapter,

6

Rawls (1999b).

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I argue that the principle of proportionality was introduced not merely to limit the threat that war poses to civilians, but also to make the laws of war more realistic, and therefore easier to implement. Hence, while sympathy and compassion undoubtedly motivated people to improve the laws of war in 1949 and 1977, states used the intention/side-effect distinction to try to limit the restrictiveness of IHL and to make it more consistent with the realities of warfare.

Protecting the Victims of Our Enemies: The Politics of Killing and the Geneva Conventions The Geneva Conventions are the result of a protracted moral struggle that was initiated in the late eighteenth century by moral philosophers and international lawyers associated with the European Enlightenment. Central to the Enlightenment perspective on war is the notion that jus in bello rules are rooted in respect for the moral worth and humanity of persons and that as a result they need to be applied regardless of the justice of the cause for which people fight.7 As Rousseau argued in The Social Contract, wars are, by definition, conflicts between states, not individuals. Soldiers are allowed to kill each other to promote the objectives of the state, but as soon as they lay down their arms “they become once again simply men, and no one has any further right over their lives.”8 Also, as Vattel argued, all states claim to have justice on their side, and so the application of the laws of war should not be based on whether soldiers fight for a just cause. It should be based on the dignity of persons – what we would now call human rights. Beginning in 1864 with the signing of the first Geneva Convention that ensured the neutrality of medical personnel, ambulances, and the wounded and sick in the field, the Geneva Conventions are, to a certain extent, an institutional embodiment of the Enlightenment conception of war, designed as they are to protect the victims of war regardless of the nations to which they belong or the causes for which they fight. The first Geneva Convention of 1864 was the product of tireless activism on the part of a Swiss banker named Henri Dunant. In June of 1859, while Dunant was on his way to meet the French Emperor Napoleon III on behalf of a business “venture in French-controlled Algeria,” he happened upon the northern Italian town of Solferino, which was recuperating after a battle between Austria, Italy, and France.9 Shocked by the lack of medical resources for wounded soldiers, 7

Best (1980) and Witt (2013, 17).

8

Rousseau (1988b, 90).

9

Witt (2013, 338).

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Dunant stepped up to “organize the situation” by mobilizing locals to “aid…the wounded regardless of nationality.”10 Reflecting on his experiences, in 1862 Dunant wrote A Memory of Solferino, a short pamphlet that detailed the sufferings of warfare and called for the creation of the ICRC. In a passage that reflects the logic of the empathy-altruism hypothesis, Dunant recounts the motivations of his relief efforts: The moral sense of the importance of human life; the humane desire to lighten a little the torments of all these poor wretches, or restore their shattered courage; the furious and relentless activity which a man summons…at such moments; all these combine to create a kind of energy which gives one a positive craving to relieve as many as one can.…[I]t is as if you were stricken all at once with a sense of bitter and irresistible sadness, because of some simple incident, … some small unexpected detail which strikes closer to the soul, seizing on our sympathies and shaking all the most sensitive fibres of our being.11

Dunant explains that his reason for recounting “all these scenes of pain and distress” was to arouse a sense of sympathy in his readers to motivate them to form relief societies to aid wounded soldiers.12 In this, he was largely successful. According to legal historian John Witt, Dunant’s “powerful story did for the treatment of the wounded in Europe what Harriet Beecher Stowe’s Uncle Tom’s Cabin had done for slavery in the United States.”13 Along with a network of supporters, Dunant helped to convene a series of conferences in 1863 and 1864 that culminated in the signing of the first Geneva Convention of 1864. In the following decades, the scope of the Geneva Conventions would expand to include protections for the shipwrecked at sea (1906/1907) and for prisoners of war (1929). Despite their humanitarian orientation, from 1864 to 1949 the Geneva Conventions lent few protections to civilian populations in war. The only provision devoted to civilians was Article 81 of the 1929 Geneva Convention Relative to the Treatment of Prisoners of War. However, Article 81 only applied to particular categories of civilians, namely newspaper reporters, correspondents, sutlers, and contractors, and it only entitled them to POW status. Prior to 1949, the ICRC pushed for states to sign an international treaty devoted exclusively to protecting civilian populations, but it was not until World War II that any significant headway was made on a civilian treaty. Although customary international law did not permit states to wage war against civilians – indeed many legal scholars interpret the Martens Clause in the Hague Conventions as implicitly granting protections to civilians – there were few direct treaty 10 12

11 Witt (2013, 338). Dunant (1959 [1862], 73–74). 13 Dunant (1959 [1862], 115). Witt (2013, 339).

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provisions that outlined the rights of civilians in wartime. Nazi atrocities during World War II and the Holocaust, specifically the systematic rounding up and extermination of Jewish people and other “undesirables” made it clear that the laws of war needed to be updated with clearer and stronger protections for civilian populations. As with the previous conventions, the ICRC was the primary organization that pushed for updating and revising the Geneva Conventions. In September 1945, Max Huber, the President of the ICRC, sent a memo to foreign ministers asking them to consider revising the Conventions on the treatment of POWs, the Wounded and Sick in the Field, and the Wounded and Shipwrecked at Sea. He also asked them to consider the possibility of drafting a new treaty relative to the protection of civilians. Huber requested that foreign ministers send a group of qualified experts to a Red Cross conference in Geneva with the aim of providing the ICRC with “the benefit of their experiences concerning the position of Prisoners of War and Civil Internees.”14 What resulted from these efforts was the meeting of government experts in Geneva in 1947 and a conference in Stockholm in 1948. The Stockholm Conference was devoted to drafting four conventions: (1) a convention for the relief of wounded and sick combatants; (2) a convention for the relief of wounded, sick, and shipwrecked at sea; (3) a convention on POW treatment; and (4) a convention on the protection of civilians. As would become apparent at the diplomatic conference in Geneva in the spring and summer of 1949, the Stockholm texts were far too idealistic, perhaps due in part to the role of the ICRC in drafting them. Their idealism was most clearly reflected in Draft Common Article 2 paragraph 4, which held that in armed conflicts “not of an international character” the provisions of the treaties should be applied in full.15 Because this was widely seen as a threat to state sovereignty, the resulting Common Article 3 was drastically curtailed, merely placing general humanitarian restraints on noninternational conflicts. The United States had several reasons for wanting to update the Geneva Conventions. In his report on the 1947 Conference of Government Experts, Albert Clattenburg, Jr., the chair of the US delegation, noted that there were two reasons for updating the Geneva Conventions. First, the United States wanted “to effect some mitigation,

14 15

Max Huber to James Byrnes, September 9, 1945. Central Decimal File, 1945–1949 (CDF), File 514.2 Geneva /9-545, RG 59, Box 2386, USNA. FDP (1949, Volume 1, 113). For a discussion of the politics of Common Article 3, see Mantilla (2017).

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even if slight, in the suffering of individuals by setting up a standard of decency which no government [would] want openly to violate.” The recently terminated war revealed wide gaps in accepted standards of decency as set forth in international law. These exist partly because that law has been largely influenced by historians and idealists rather than by persons with operating experience and partly because no person appears to have been able to visualize sufficiently the peaks of scientific and technical achievement or the depths of barbarity that the human race would achieve within a few short years. The nations must set a practicable standard of humanity and morality on these points or risk allowing acts committed in the past war to receive the sanction of precedent.16

Second, Clattenburg observed that the Geneva Conventions “represent a sort of insurance policy.”17 Civilians and POWs “hope not to collect on it but it helps allay fears,” especially for weaker states, who may fear being occupied or overrun in war.18 Thus, far from merely regarding the Conventions as a useful tool for shoring up their moral image, US officials seem to have been sincere in their concern for protecting the victims of Nazi-style aggression. After all, this report was marked secret, and so Clattenburg had little incentive to feign empathy. But despite these professions of sympathy, Clattenburg also believed that the laws of armed conflict should not be unduly burdensome. In particular, Clattenburg explained the American view of humanitarian conventions as follows: The American delegation to the meeting under review shares the conviction of all the other delegations that the governments of the world should press firmly toward the development and formal adoption of new conventions which will set forth unmistakably the rights of individuals to humanitarian treatment in time of war and yet will not impose such unreasonably heavy duties upon the belligerents as to compel them through force majeure to result to violations. Such conventions should be acceptable to the greatest possible number of governments even at the price of departure from traditional terms.19

The United States and its allies had several concerns for restricting the protections that the Geneva Conventions would extend to war victims. First, the United States was currently occupying a portion of Germany, and, as a result, it sought to ensure that the resulting conventions did not unduly restrict its ability to maintain law and order. For example, one of the important innovations of the 1949 Conventions is that they outlawed 16 17 18 19

Albert Clattenburg to US Secretary of State, August 26, 1947. CDF, File 514.2 Geneva/ 8-2647, RG 59, Box 2387, USNA. Albert Clattenburg to US Secretary of State, August 26, 1947. Albert Clattenburg to US Secretary of State, August 26, 1947. Albert Clattenburg to US Secretary of State, August 26, 1947, emphasis added.

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reprisals as a tool of law enforcement – a result that conflicts with rationalist theories of institutional design. Reprisals were widely used in World War II, not only as a justification for attacking civilians but also for mistreating prisoners of war. The ICRC along with many of the liberated countries in World War II sought to outlaw reprisals as a tool of law enforcement, and they did this largely for moral reasons. As the ICRC’s 1958 commentary on the Geneva Conventions explains, the goal of outlawing reprisals against civilians stems largely from the fact that such “reprisals constitute … a collective penalty bearing on those who least deserve … it.”20 At the 1947 Conference of Government Experts, the United States attempted to restrict the effect that this might have on the occupation of Germany. As Clattenburg reported, So far as concerned categorical outlawing of such barbarous practices as tattooing of civilians, torture, use of hostages, reprisals, and the punitive destruction of villages, the United States delegation felt that it should go along with the other delegations even though Allied military law in Germany is understood to provide or to have provided for taking hostages, making reprisals, and destroying villages when deemed necessary as a punishment. But when the delegates of the liberated countries wanted so to hamper the authority of the occupying forces as to take away power necessary to maintain order and discipline, the American delegation had to disagree.21

Second, Western states wanted to ensure that even as the Conventions prohibited some of the most egregious violations of human rights by Nazi Germany, they did not threaten their capacity to wage war. In the next two subsections, I examine how the United States and its allies tried to limit the effects that the Geneva Conventions would have on aerial bombing and nuclear weapons policy. Protected Persons in Their Hands: Air Warfare, Legal Discourse, and Intentional Targeting Despite evident concerns over the efficacy of strategic bombing,22 Western states sought to ensure that postwar international law did not directly prohibit aerial bombing of enemy cities. At the diplomatic conferences on the Geneva Conventions, the United States and Great Britain employed two main arguments to justify excluding aerial 20 22

21 Pictet (1958, 228). Albert Clattenburg to US Secretary of State, August 26, 1947. In a 1950 State Department Policy Planning Staff report on “Bombing Civilians,” it was reported that Admiral Ralph Ofstie told Congress that, aside from aiding land operations, strategic bombing “did not have a decisive effect on the outcome of” World War II (77–78), RG 59, Historical Studies Division, Research Projects, 1945–1954, Box 10, USNA.

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bombing from the protections set forth in Geneva Convention IV. First, they argued that states should only be prohibited from intentionally targeting civilian populations. Secondly, they tried to restrict the scope of those articles that might have affected bombing policy. Article 32 holds that “the high contracting parties specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands.” The italicized phrase implies that states are only prohibited from practices that have these effects in occupied countries. This did not apply to civilian populations in Axis powers during World War II, nor does it apply to most civilian populations in international wars. Since Article 32 is in Part III of Convention IV, which addresses “provisions common to the territories of the parties to the conflict and to occupied territories,” this restriction makes sense. Indeed, the ICRC’s 1958 Commentary on the Conventions points out that “the words ‘in their hands’ define[s] exactly the purpose of this article.”23 However, a review of the negotiating history reveals the extent to which the United States and the United Kingdom went to avoid legal restrictions on bombing and to ensure that the Geneva Conventions did not encroach on the Hague Regulations. Although Western powers tried to ensure that the Geneva Conventions would not prohibit aerial bombardment strategies, the Soviet Union and its allies did not have the same concerns. More research is required to understand Soviet intentions vis-à-vis the Geneva Conference, but the available evidence shows that Soviet bloc countries used the diplomatic negotiations over the Geneva Conventions to score propaganda points against their enemies, in particular by introducing provisions and resolutions that would embarrass the United States and the United Kingdom. The Soviet Union presented itself to the conference as a dovish humanitarian whose only interest was in protecting the victims of war. Not only did the Soviets endorse virtually every provision of the overly idealistic Stockholm Draft, but they also criticized the West as warmongers whenever they rejected Soviet proposals. Further, the Soviets had skipped the preparatory conferences and only showed up at Geneva in 1949, which fueled speculation that they were attempting to increase their bargaining leverage over the conventions.24 The discussion of aerial bombing focused on two controversial amendments to the civilians convention. The Soviets proposed an article that

23

Pictet (1958, 222).

24

Barsalou (2018, 62).

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would have prohibited the use of military tactics that lead to the extermination of civilians. The Soviet draft, Article 29A, stipulated that The Contracting States undertake to prohibit, and to consider as a serious crime, all murder, torture, maltreatment, mutilation…or scientific experiments not necessitated by medical treatment, as also all other means of exterminating the civilian population. Furthermore, all other measures of brutality used against protected persons in the hands of the Contracting Parties are prohibited, whether applied by civilian or military agents.25

Though seemingly innocuous, this amendment was actually quite significant, especially the italicized words. Had it been adopted, it would have outlawed the use of weapons of mass destruction (WMDs), including but not limited to nuclear weapons, a possibility that was of grave concern to the United States. In a telegram to the State Department, the American delegation reported that Although SOVDEL avoided direct reference to secret weapon and refused to give concrete examples of cases intended to be covered by phrase “means of exterminating the civilian population” it is abundantly clear from debate on article 29A that Soviet is seeking to outlaw aerial bombardment by characterizing as a serious crime “all other means of exterminating the civilian population.”26

In response to the proposed Soviet article, the United States proposed an amendment which held that states should be prohibited from “taking any measure which has as an object the physical suffering…of protected persons in [their] power.”27 The Drafting Committee eventually re-worded the US proposal to read that states should be “prohibited from ... aiming at the physical suffering ... of protected persons in their hands.”28 Consistent with my argument, the US proposal used the notion of intentionality to restrict the scope of the Geneva Conventions in protecting noncombatants, for it would only prevent states from aiming at the physical suffering or extermination of protected persons; it would, nevertheless, allow them to implement tactics or to use weapons that do in fact cause mass death and destruction to civilians. In his statement to Committee III of the conference – the committee assigned to develop the convention on civilians – US delegate Albert Clattenburg argued that 25 26 27 28

FPD (1949, Volume 3, 116), emphasis added. State Department Telegram from Geneva Conference, June 17, 1949. CDF, File 514.2 Geneva/6-1749, RG 59, Box 2388, USNA. FPD (1949, Volume 2-A, 647). FPD (1949, Volume 3, 116–117); FPD (1949, Volume 2-A, 715).

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[T]he proposal to consider as a ‘serious crime’ ‘all means of exterminating the civilian population’ called for serious consideration – and rejection. To begin with, the word ‘extermination’ was so vague…that it could be interpreted as prohibiting methods of warfare long sanctioned by international law. The United States could not accept such a drastic revision of the rules of war – however cleverly advanced as a humanitarian proposal. The present Conference was neither a disarmament conference nor a conference to re-write the Hague Conventions.29

In response, the Soviet Union and its allies made two claims. First, they argued that it would not be sufficient to prevent the extermination of civilians by outlawing states from intentionally killing them. As the Ukraine pointed out, the US interpretation “might enable the responsible authority to disclaim responsibility by alleging that the measures it had taken had been dictated by military necessity without any real intention to cause those sufferings or to exterminate protected persons.”30 Second, they argued that restricting the applicability of the Geneva Conventions to protected persons in the hands of the state would not provide sufficient protections because it would be “applicable only to occupied territory.”31 Similar disagreements emerged over Draft Article 30, which was designed to limit property destruction. While the United States argued that the Geneva Conventions should focus on limiting property destruction in occupied territories, the Soviets claimed that they should be more comprehensive.32 A Soviet draft proposal that captured this concern held that “any destruction of personal and real property…which is not made absolutely necessary by military operations, is prohibited.”33 When the Soviets introduced this proposal, the United States sent a telegram to Washington which commented on the “obvious emotional appeal” of Soviet Draft Articles 29A and 30.34 To prevent the conventions from outlawing aerial bombing and nuclear weapons, the United States introduced the article that stipulated that states should not be permitted to take “as an object the…extermination of” civilians.35 Since the US version of Article 29A would have created space for plausible deniability, it was eventually revised to read that the Contracting Parties are prohibited from “taking any measure of such a character as to cause the physical suffering … of protected persons in 29 31 33 34 35

30 FPD (1949, Volume 2-A, 716). FPD (1949, Volume 2-A, 717). 32 FPD (1949, Volume 2-A, 717). FPD (1949, Volume 2-A, 720). FPD (1949, Volume 3, 117). State Department Telegram from Geneva Conference, May 17, 1949, CDF FIle 514.2 Geneva/5-1749, RG 59, Box 2388, USNA. FPD (1949, Volume 2-A, 647).

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their hands.”36 That said, the draft article retained the phrase “in their hands,” which led the Indian delegation to later point out that this would have the effect of limiting the protections offered by the Geneva Conventions. The United States responded that “the purpose of the phrase ‘protected persons in their hands’ is to limit the application of Article 29A to protected persons and to preclude any future interpretation that Article 29A regulates the conduct of military operations.”37 Because the Soviet version of Article 29A would have rendered illegal all means of exterminating civilians, including via aerial bombing and nuclear attacks, this was a major concern for Western states. In a cable to the British representative at Geneva, UK official Sir David Roseway argued that “clearly nothing must be included…which would restrict freedom to carry out operations, particularly bombing.” In discussing Soviet attempts to prevent the extermination of civilians and the destruction of civilian property, Roseway felt that the phrase “‘extensive destruction of property’ should be qualified by some such phrase as ‘except as may occur or be required in the course of accepted acts of warfare’” and that “it might be as well to introduce the word ‘deliberate’ or even ‘coldblooded’ if there is a Russian word for this.”38 Carpet-bombing would not be clearly outlawed in positive international law until the 1970s with Additional Protocol I. Until then, Western powers resisted attempts to create stricter restraints that would limit their ability to wage war from the air. Though the strategic rationale for doing this is easy to understand, what is interesting is the degree to which the discussions over aerial bombing in Geneva in 1949 cohere with rather than detract from commonsense ways of thinking about the morality of killing in war. Far from restricting the ability of states to bomb enemy targets from the air, the evidence shows that states used moral intuitions such as the intention/sideeffect distinction to try to limit the scope of IHL. Though concerns over plausible deniability led states to revise the US proposals to focus less on intentions and more on consequences, Additional Protocol I, which I review later, focuses more directly on intentions in articulating the principle of distinction. But the fact that Western powers used such moral intuitions to try to justify military strategies that can expose civilians to high risks is telling, for it illustrates their attempt to use permissive principles to restrict IHL. This provides mixed support for the theory in Part I: The US strategy did not succeed, but US officials did use the intention/sideeffect distinction to try to shape the content of the Geneva Conventions.

36 38

37 FPD (1949, Volume 2-A, 718–719). FPD (1949, Volume 2-B, 407). Quoted in Best (1994, 111). Roseway to Gardner, June 9, 1949. FO: 369/4153, K5618. British National Archives.

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Outlawing the Bomb: Nuclear Weapons and the Geneva Conventions of 1949 On July 6, 1949, the Soviet Union introduced a draft resolution to Committee III that would have effectively outlawed the use of nuclear weapons. Acknowledging that the chief defect of the civilians convention was that it did not “contain sufficient safeguards for … the civilian population against the most dangerous consequences of modern warfare,” the Soviet Union urged the Conference to take a stand on the legitimacy of nuclear weapons.39 The Soviet resolution called for three things: (1) a statement to the effect that the use of bacteriological, chemical, and nuclear weapons are “incompatible with the elementary principles of international law and the conscience of peoples”; (2) a statement claiming that it is the duty of all governments to ratify the 1925 Geneva Protocol on chemical weapons; and (3) a statement that it “is the duty of the Governments of all countries to obtain the…signature of a Convention relative to the prohibition of the atomic weapon as a means of mass extermination of the population.”40 The United States had three concerns with the Soviet proposal. First, it would constrain US decision-making by stating that it is illegal use nuclear weapons. The Soviets claimed that their resolution did not outlaw anything. It was, after all, only a resolution, not a full-fledged article of the Conventions. However, it did claim that the use of nuclear weapons is inconsistent with the general principles of international law. Accepting this resolution would mean that the United States would not be able to legally use nuclear weapons. The United States could always ignore the law, but it would complicate US policy to openly accept such a resolution. Second, the United States was concerned that a resolution that merely prohibited nuclear weapons, but contained no provisions for delegating arms control to an international authority, would be ineffective. In a confidential State Department letter, one official articulated this rationale for rejecting the proposal, concluding that “it is impossible to see how” a convention that merely forbids the use of nuclear weapons “could afford any assurance of security even to its proponents. It would not protect the world against atomic warfare. It would give an aggressor nation the opportunity to acquire an overwhelming military supremacy.”41 Finally, the United States wanted to avoid being humiliated in defending its nuclear policies against the popular appeal of the Soviet resolution.

39 41

40 FPD (1949, Volume 2-A, 761). FPD (1949, Volume 2-A, 762). Outgoing Telegram to the American Consul in Switzerland, July 8, 1949. Subject Files Relating to the Preparation of the Geneva Conventions, 1946–1949 (SFGC), RG 389, Office of the Provost Marshall, Box 677, USNA.

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Before the start of the Geneva conference, some US policymakers believed that the Soviet Union would use the conference as a way to shame the United States for its nuclear weapons policy. In a letter written at the start of the conference, one official noted that …the Soviets … may use [the Geneva talks] as another international platform in an effort to embarrass us and accuse us of warmongering. In this connection, it should be noted that at Stockholm a resolution was passed unanimously (the United States and six other nations abstaining) calling upon the nations “to prohibit absolutely all recourse to such weapons (i.e., non-directed weapons) and to the use of atomic energy or any similar forces for the purposes of warfare.” A Soviet motion to incorporate such a resolution in the convention relating to the treatment of civilians would have popular appeal and could be effectively used in their propaganda.42

When the Soviets presented their draft resolution to the Conference, these fears were confirmed. Along with Great Britain and Australia, the United States made a concerted effort to not simply resist the resolution, but to make sure that it would not even be discussed. The fact that the United States might be embarrassed by a discussion of nuclear weapons use is easy to understand: It was, and still is, the only country that has used nuclear weapons. Furthermore, if the United States adopted a resolution claiming that nuclear weapons use violates the general principles of international law, this would imply that President Truman was a war criminal for the bombings of Hiroshima and Nagasaki. In response to the Soviet resolution, US officials argued that the Geneva Conference had no competence to govern the means or methods of war. The ICRC was a humanitarian organization that had no authority to stipulate the laws that states should follow in war. In a letter to the President of the Conference, the opponents of the Soviet resolution argued that it was “outside the scope of … this Conference” to prohibit nuclear weapons use. The objective of the conference was to develop conventions for protecting war victims, not to develop rules concerning “what weapons of warfare are legitimate.”43 Further, they argued that jurisdiction for controlling nuclear weapons had already been delegated to the UN Atomic Energy Commission. A resolution from the Geneva Conference would effectively usurp the jurisdiction of this organization for arms control negotiations. Committee III eventually rejected the Soviet resolution. However, the Soviets raised the issue once again during the final plenary sessions of the 42 43

O’Shaughnessy to Allen, April 22, 1949. CDF, File 514.2 Geneva/4-2249, RG 59, Box 2388, USNA. FPD (1949, Volume 3, 180).

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conference. In these final meetings, it quickly became clear why the United States and its allies had fought so vehemently to ensure the resolutions were not receivable by the conference, for these discussions provided a clear opening for the Soviet Bloc to implicitly shame the United States for using nuclear weapons in World War II. Not only did Romania draw an implicit connection between nuclear weapons and the atrocities that took place at Auschwitz, Dachau, and Buchenwald, but Czechoslovakia argued that states that use nuclear weapons are guilty of genocide: “The use of atomic and other weapons designed for mass extermination of the population amounts in fact to genocide which, nobody can deny, is the very opposite of protection of the civilian population.”44 Western states responded to such criticisms by reiterating that they were not the enemies “of progressive measures in the field of atomic energy,” as Colonel Hodgson of Australia noted,45 but that they were actively pursuing arms control measures through the United Nations – measures that the Soviet Union was actively stifling. The result of all this is that although the 1949 Geneva Conventions made clear progress in developing better protections for war victims, they had few implications for air warfare and nuclear weapons use. Although Western states had clear realpolitik reasons to ensure that the Conventions placed limited restrictions on aerial bombing and nuclear weapons use, the evidence adduced here shows that normative considerations had two key effects. First, their concern with being humiliated and accused of warmongering encouraged US diplomats to try to stifle efforts to prohibit nuclear weapons use.46 Second, they used the intention/sideeffect distinction to try to limit the scope of the Geneva Conventions. Although this latter strategy was not as successful as my theory might predict, the fact that states used this distinction reveals the extent to which states use intentionality language to create permissive norms, a strategy that would be used again in 1974–1977. The Reaffirmation and Development of International Humanitarian Law: 1957–1973 From the early 1950s to the early 1970s, the ICRC continually pressed for developing IHL, encouraging states to develop better norms on aerial bombing, WMDs, and non-international wars. With respect to protections for civilians and POWs, there were three gaps in the 1949 Conventions: they did not outlaw carpet-bombing, they had few 44 46

FPD (1949, Volume 2-B, 508). Barsalou (2018, 65).

45

FPD (1949, Volume 2-B, 507).

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provisions for applying IHL to non-international wars, and they did not directly prohibit nuclear weapons use. From the perspective of IHL, nuclear weapons raise several problems. On the one hand, it is difficult to make sure that they will be used in a discriminate manner. Not only does their deterrent capability derive from the fact that, if used, they will kill large numbers of innocent civilians, but the effects of nuclear weapons on the natural environment would make it hard to ensure that their use is proportionate. Further, to make nuclear deterrence credible, states must be resolved to use them in the event that deterrence breaks down, which, when combined with the problems that these weapons raise for the principles of distinction and proportionality, makes it hard to justify nuclear deterrence policies under IHL. For these reasons the ICRC sought to create better rules for governing nuclear weapons use. But although the Additional Protocols contain better provisions for regulating air warfare and non-international armed conflicts, they contain no ban on the use of nuclear weapons. This was largely a result of the efforts of the Western powers, particularly the United States. In the following section, I discuss the diplomatic negotiations over the Additional Protocols. To set the stage, in this section I describe the historical background of the negotiations in the late 1950s and 1960s. I show that although the Western powers had a strong incentive to support certain refinements in IHL, they resisted efforts by the ICRC to organize a diplomatic conference on IHL, partially due to concerns over regulating WMDs. Furthermore, I argue that it was the newly independent states and national liberation movements that led the charge for updating and refining IHL. While newly independent states and national liberation movements certainly had humanitarian incentives for updating and developing IHL, their main concern had to do with the fact that the laws of war – the Hague Conventions of 1899/1907 and the Geneva Conventions of 1949 – had largely been written without their consent. As a result of decolonization, “developing countries…requested a revision of the Geneva Conventions to take greater account of their circumstances and legitimate requirements.”47 In 1957, the ICRC organized a conference in New Delhi that was devoted to updating and revising international humanitarian law. Several of the Draft Rules for the New Delhi conference would eventually work their way into Protocol I after being significantly revised. One Draft Article that did not make its way into any subsequent treaties was Article 14:

47

Bugnion (2000, 44).

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Without prejudice to the present or future prohibition of certain specific weapons, the use is prohibited of weapons whose harmful effects – resulting in particular from the dissemination of incendiary, chemical, bacteriological, radioactive or other agents – could spread to an unforeseen degree or escape, either in space or in time, from the control of those who employ them, thus endangering the civilian population. This prohibition also applies to delayed-action weapons, the dangerous effects of which are liable to be felt by the civilian population.48

Although the United States participated in the New Delhi conference, Article 14 made the State Department seriously consider not sending a delegation. It had two basic concerns. Similar to how it approached the issue of nuclear weapons at the Geneva Conference in the late 1940s, the United States was concerned that the ICRC conference would eventually build momentum for introducing legal restraints on the right to use nuclear weapons in war, which would conflict with US nuclear deterrence policy. Second, and relatedly, it felt that the ICRC was stepping outside its appropriate sphere of competence – i.e., humanitarian relief efforts – in regulating the methods of warfare. For example, a confidential State Department memo from 1957 quoted as follows an interim report by the OCB Nuclear Energy Working Group: The proposed rules, if adopted, would clearly be a basis for political and propaganda opposition to the use of nuclear weapons. In the view of the Department of Defense, the draft rules in their present form are unacceptable. They would necessitate, directly or by implication, sweeping changes in the conduct of war. If the US were to adhere to the rules in their present form, our military commanders would find themselves severely restricted in their operations in time of war…. [T]he proposed rules, pertaining as they do to types of weapons and methods of use, differ from earlier Geneva Conventions regarding the protection of civilians, and are in the view of the US a matter for consideration by Governments rather than by the Red Cross.49

At New Delhi, American Red Cross President, and former US General, Alfred Gruenther articulated some of the same points concerning nuclear weapons that US officials had made at Geneva in 1949.50 48

49

50

Article 14. Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War. New Delhi: International Committee of the Red Cross, 1957. “XIX International Red Cross Conference at New Delhi,” June 25, 1957. Records Relating to the Red Cross and Geneva Conventions (RRGC), 1941–1967, Entry 5210, RG 59, Box 2,USNA. Although General Gruenther spoke as the president of the American Red Cross, archival records indicate that there was substantial planning between US government officials and General Gruenther prior to the 1957 conference. Indeed, one document indicates that General Gruenther believed that the US “should exert every effort to have” the Draft

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He argued that although nuclear weapons were a regrettable feature of international relations, it was not possible to develop an outright ban on nuclear weapon use in the absence of a comprehensive agreement on arms control, preferably through the United Nations. An unenforceable ban on the use of nuclear weapons would protect no one. I personally wish that atomic weapons had never been invented. However, I must invite your attention to a fact of history – that on this 29th day of October, 1957, the issue of…banning atomic weapons is an extremely controversial one. There are two schools of thought….One … says that atomic weapons…should be banned without condition. The other,…says, “Yes, we agree that they should be banned, but that action should be part of an over-all disarmament agreement.” It is my belief that the International Red Cross will not wish to take either of these sides because, in the final analysis, that decision should be made by governments after thorough discussions.51

This argument was consistent with negotiating tactics that had been worked out among the Western powers before the conference. The United Kingdom had specifically suggested that even though it would be preferable to completely drop the controversial draft rules, communist states would argue that the ICRC was simply caving to Western demands. As a result, they proposed that the Western line should be to express sympathy for “the humanitarian ideals that underlie the [draft] rules,” but to make sure that ICRC efforts to prohibit nuclear weapons use would not succeed.52 The fact that it was not possible to arrive at a consensus on how to address nuclear weapons, especially a consensus that was agreeable to the West, effectively meant that ICRC attempts to set forth legal restrictions on nuclear weapons use would not succeed. Nevertheless, the ICRC would continue to raise this issue throughout the 1960s leading up to the preparatory conferences on the Additional Protocols. By the 1970s, the ICRC decided that although it would continue to pursue an antinuclear weapons policy through moral suasion, it would focus its energy on developing legal norms for protecting noncombatants and POWs in “wars of the present type,” namely civil wars and wars stemming from national liberation struggles.53 Not only did its antinuclear weapons stance conflict with the deterrence policies of the superpowers, but by the late 1960s and early

51 52 53

Rules “handled in the least damaging manner from the point of view of US national interest. ” “US Participation in the XIXth International Red Cross Conference,” June 19, 1957. RRGC, 1941–1957, RG 59, Box 2, USNA. International Committee of the Red Cross (1957, 38). United Kingdom Delegation, Proposed Tactics at the International Red Cross Conference at New Delhi. RRGC, 1941–1967, Entry 5210, RG 59, Box 2, USNA. International Committee of the Red Cross (1969, 54).

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1970s many nuclear weapons experts believed that a nuclear conflict between the superpowers was improbable. Further, there was an urgent need to update IHL to deal with civil conflicts and wars of national liberation.54 National liberation movements had a strong interest in revising the laws of armed conflict. Not only did many conflicts in the post-World War II era involve struggles for national liberation, e.g., in Vietnam and Algeria, but these conflicts also revealed significant problems for international humanitarian law. Most importantly, the Geneva Conventions applied primarily to international armed conflicts – with the exception of Common Article 3. This meant that even though states were legally required to treat enemy noncombatants and captured soldiers humanely, most provisions of the Geneva Conventions did not apply. Furthermore, guerrilla soldiers and revolutionaries fighting in wars of national liberation were, for the most part, not eligible for POW status upon capture. To be viewed as a lawful combatant under international law one must be a member of the armed forces of a sovereign state, a militia corps, or an organized resistance movement,55– rules that did not clearly apply to national liberation fighters who used guerrilla warfare tactics and blended in with civilians. There are two main reasons why national liberation fighters wanted to gain recognition as lawful combatants. First, it would confer some measure of legitimacy on the causes for which they were fighting, a goal that also led them to successfully push for a seat at the negotiating table during the AP I and II conferences. Although some states, particularly the United States, opposed allowing national liberation movements the right to participate in the conference proceedings, they were eventually allowed to participate subject to the condition that they could not vote on the provisions.56 Second, and more importantly, the national liberation movements wanted their soldiers to be recognized as lawful combatants because this would entitle them to POW status upon capture. IHL entitles POWs to several protections, the most important of which is that they cannot be punished for participating in armed hostilities. From the perspective of sovereign states, however, guerrilla fighters and rebels are criminals guilty of treason, which often meant that they could be executed upon conviction.

54 55 56

Bugnion (2000). Article 4(2) of the Geneva Convention Relative to the Protection of Prisoners of War, August 12, 1949. FPD (1978, Volume 2, 15).

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Wars of national liberation, including the Vietnam War, also revealed several inadequacies in IHL. As noted in the preceding sections, the Geneva Conventions did not provide nearly as many protections to the civilian population as the ICRC had hoped. In fact, most of the safeguards granted to protected persons applied only to military occupations, not armed conflicts in general. However, states still used military tactics that caused extensive civilian suffering, particularly aerial bombing. In Vietnam, for example, the Johnson and Nixon administrations both launched massive bombing campaigns, much to the detriment of civilian populations in North Vietnam, South Vietnam, Laos, and Cambodia. Second, the widespread use of napalm and Agent Orange revealed a gaping hole in IHL: It contained virtually no protections for the natural environment. While each of these motives for updating IHL had strong moral undertones, developing countries also had good military reasons to revise IHL in a direction that would place stricter limitations on how powerful states waged war. As the delegate from Algeria remarked during an early session of the AP I and II conferences: “The new instruments to be drawn up … must … reflect the existing situation, in which…underdeveloped peoples confronted an imperialistic aggressor equipped with… up-to-date and cruel weapons.”57 It was not until the late 1960s that a groundswell of pressure emerged for reaffirming and developing IHL. In 1965 and in 1969, the ICRC held meetings in Vienna and Istanbul respectively, but it was the 1968 UNsponsored International Conference on Human Rights in Tehran that really generated support for updating IHL. In Resolution XXIII of the Final Act, the Tehran Conference of 1968 called on the UN “to study… [t]he need for additional” IHL rules for safeguarding civilians. Explicitly calling attention to napalm bombing, Resolution XXIII called for the UN to take a more active role in pushing for developments in international humanitarian law. In particular, it held that the provisions of the Hague Conventions of 1899 and 1907 were intended to be only a first step in the provision of a code prohibiting or limiting the use of certain methods of warfare and that they were adopted at a time when the present means and methods of warfare did not exist.58

The Hague Conventions of 1899 and 1907 and the 1949 Geneva Conventions were created in large measure by the powerful Western states – a fact that is clearly evidenced by the exceedingly small number

57 58

FPD (1978, Volume 5, 148). Final Act of the International Conference on Human Rights, Tehran, 1968, page 18.

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of non-Western states that took part in negotiating them. Resolution XXIII called attention to the need to develop IHL so that it better reflected the changed circumstances of world politics.59

The Additional Protocols of 1977: Intentional Killing and the Politics of Proportionality These efforts eventually led to the convening of two conferences for government experts in 1971 and 1972. As a result of these meetings, the ICRC produced two draft texts for reaffirming and updating IHL: Protocol I, which was applicable to international armed conflicts; and Protocol II, which was applicable to non-international armed conflicts. The diplomatic negotiations that led to the Additional Protocols took place in four conference sessions between 1974 and 1977. Though Additional Protocols I and II significantly clarified and extended the laws of armed conflict, in this section I argue that they left important loopholes in IHL that enable states to fight in ways that can pose a major threat to civilians. Not only were Western states such as the United States, the United Kingdom, and France concerned to ensure that the resulting treaties would have few implications for nuclear weapons,60 but in addition the negotiating parties on all sides defended provisions that would effectively allow belligerents to use military tactics that pose significant incidental risks to civilian lives. While newly independent states and national liberation movements pushed hard for provisions that would grant recognition to the rights of guerrilla soldiers, the resulting Article 44(3) redefined the idea of POW status in a way that, critics argued, effectively enshrined the practices of guerrilla warfare into IHL. Recognizing that there are situations where combatants cannot easily distinguish themselves from civilians, Article 44(3) requires them to carry their arms openly “during each military engagement,” and only so long as they are visible to the enemy, a provision that can in practice 59 60

Bugnion (2000, 44). In a meeting of Western states before the conference in London in October 1973, France and Great Britain expressed the concern that the conference would be used as a platform for outlawing nuclear weapons. According to an American delegate who was present, the French argued “that something needed to be done explicitly to exclude nuclear weapons use from coverage” in the treaty articles. In response, the United States argued that since there were so many diverging perspectives on the lawfulness of nuclear use, it was unlikely that these problems would be resolved in the conference. In any case, the Protocols passed no provisions on nuclear use. Telegram from US Embassy London to Secretary of State, October 17, 1973 [Electronic Record]; Central Foreign Policy Files, 7/1/1973–12/31/1979 (CFPF), RG 59, USNA. [Retrieved from Access to Archival Databases at www.archives .gov, May 21, 2020]. Document Number: 1973LONDON12061.

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threaten civilians. For their part, Western powers such as the United States defended the principle of proportionality, which was heavily criticized by many non-Western states for providing insufficient protections for war victims, mainly due to concerns that it would enable states to plausibly deny targeting civilians.

Protections for Civilians in Protocol I: Carpet-Bombing, Spreading Terror, and Proportionality Protocol I made several important contributions to the laws of war. Although the United States had initially expressed some misgivings concerning provisions in the draft of Protocol I relating to area bombardment, Articles 51(4) and 51(5)(b) effectively outlaw carpet-bombing. Article 51 expressly prohibits “any methods or means [of war] which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, [or] village…containing a similar concentration of civilians.” This effectively prohibits states from leveling entire city areas by claiming that they contain military targets separated by a distance. Two possible factors might help explain why the great powers had a change of heart when it came to carpetbombing. They may have decided that carpet-bombing is militarily ineffective. As Hans Blix, who at this time headed the Swedish delegation, pointed out in the discussions on aerial war, “the history and literature of air warfare since the First World War presented much evidence which tended to show that terror raids and area bombardments had limited military value, while causing enormous losses in civilian lives and civilian objects.”61 Indeed, even some US officials believed that precision strikes on oil, communications, and German Air Force targets were more effective than attacks on cities.62 While this explanation emphasizes a strategic rationale, implicit in Blix’s comments is that carpet-bombing tactics generated such a sense of revulsion that when it became clear that they had limited military value, states had little choice but to forbid them. Another possible explanation,63 at least for the United States, is that by the time the treaties were signed, the Carter administration had taken office, and, as is well known, it was expressly devoted to promoting human rights. 61 62 63

FPD (1978, Volume 14, 60). State Department Policy Planning Staff Report on “Bombing Civilians.” Note that this is merely a possible explanation. Further research is required to understand possible changes, if any, in US policy concerning area bombing and Additional Protocol I.

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Despite these progressive developments, the protections that Protocols I and II extended to civilians were limited in two key ways. First, they were limited by the fact that they only prohibited the deliberate targeting of civilians. For example, Article 51(2) stipulates that the civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited (emphasis added).

The question of whether the italicized words should be included in the final draft of the article was a contested issue in the negotiations. The draft of this article – Draft Article 46(1) – held that “the civilian population as such, as well as individual civilians, shall not be made the object of attack. In particular, methods intended to spread terror among the civilian population are prohibited.” In Committee III of the conference – i.e., the committee tasked with reaffirming and developing provisions on the protection of civilians – the critics of this provision claimed that including an explicit reference to intentions could give rise to violations. For example, Syria “proposed that in article 46, paragraph 1, the words ‘intended to’ should be replaced by the word ‘that.’ It was dangerous to take a presumed intention as a criterion.”64 Likewise, the Iraqi delegate argued that “the idea of intention in the second part of the first paragraph was subjective and vague. The words ‘intended to spread terror’ should be replaced by the words ‘which spread terror.’”65 Similar concerns surrounded the negotiations over the related rule of proportionality. One of the most significant legal consequences of the conferences on Additional Protocols I and II is that they led to the first codification of the rule of proportionality in international law. The rule of proportionality is reflected in two articles of Additional Protocol I. Article 51(5)(b) holds that an attack is indiscriminate if it is “expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” Similarly, Article 57(1)–(2) holds that in the conduct of military operations, constant care shall be taken to spare the civilian population…. With respect to attacks, the following precautions shall be taken: (a) those who plan or decide upon an attack shall: …(iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. 64

FPD (1978, Volume 14, 48).

65

FPD (1978, Volume 14, 54).

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Even though this principle focuses more on the consequences of tactical decisions, the mental states of military personnel are key to applying it in practice. It holds that military personnel must ensure that anticipated losses are proportional to anticipated gains. These principles fit well with cognitive heuristics that lead people to believe that intentional harms are morally worse than unintentional harms and that mental states are key to assessing moral and legal culpability. However, they were subject to intense debates in the diplomatic negotiations leading up to Protocol I. In particular, the representatives of weaker states argued that the principle of proportionality should not be included in positive IHL. The representatives of Western states, however, claimed that proportionality was “as far as the law could reasonably go.”66 In particular, they argued that the main rationale for defending proportionality was that it is more realistic than an outright ban on tactics that could lead to civilian deaths. The main bone of contention between Western states and weaker states had to do with the amount of discretion that proportionality gives to military personnel. In addition, critics of proportionality were concerned that the principle could lead to abuse, for it is always possible for states to kill civilians, yet feign any intention to do so. Emphasizing these points, Vietnam argued that even though the “advocates of the principle of proportionality” believed that it would “serve to limit the risks to the civilian population,” it could also “open the door to abuses.”67 In one of the most strongly worded objections to applying the principle of proportionality to armed conflict, Romania argued that Article 50 introduced into humanitarian law a concept [i.e., proportionality] which was contrary not only to humanitarian principles but to the general principles of international law. It amounted to legal acceptance of the fact that one part of the civilian population was to be deliberately sacrificed to real or assumed military advantages and it gave military commanders the power to weigh their military advantage against the probable losses among the civilian population during an attack against the enemy.68

These statements raise two key points. On the one hand, even though the critics of proportionality openly reject the idea that we should use cost-benefit calculations in evaluating the trade-offs between military and civilian losses, they do not reject the idea of proportionality as a fundamental moral principle. In fact, their arguments were based on the notion

66 68

67 FPD (1978, Volume 14, 67). FPD (1978, Volume 14, 193). FPD (1978, Volume 14, 305), emphasis added.

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that military and civilian values are incommensurable. As the Polish delegate said, “Civilian suffering and military advantage were two values that could not conceivably be compared.”69 Hence, they did not seem to reject the idea that it is possible to morally evaluate the costs and benefits of individual actions; rather, they simply argued that military and civilian values cannot be compared. Second, as the statement by Romania makes clear, the critics of proportionality claimed that including this rule in positive IHL would paradoxically lead to an increase in intentional killings of civilians. It is always possible for military personnel to intentionally kill civilians, and then claim that they had no intention of doing so. Finally, the most significant concern raised with the principle of proportionality is that it would confer undue power and discretion on military personnel, who would almost uniformly weigh military costs and benefits as being morally more significant than civilian costs and benefits. In response to these arguments, powerful states argued that the rule of proportionality was more realistic than an outright ban on the use of military force against targets that expose civilians to incidental risks; because of this, the rule of proportionality would be more effective at protecting civilians. In the discussion over Draft Article 46, for instance, Canada argued that some “reference to proportionality was necessary. An absolute prohibition would result in a very difficult situation, for instance when there was a single civilian near a major military objective whose presence might deter an attack.”70 With reference to the same article, the United States claimed that Collateral damage to civilians and civilian objects was often unavoidable and it was unrealistic to attempt to make all such damage unlawful: the rule of proportionality was as far as the law could reasonably go. If the element of intent was omitted, the provision might be used to justify trials for accidents or for unavoidable damage.71

Not only do statements like this reflect the idea that intended harms are morally worse than accidents, but they also affirmed the idea that the principle of proportionality provides the best protection to civilians while also allowing states to use force in difficult combat operations. Because the rule of proportionality was eventually included in Protocol I, the wishes of the powerful states held sway. Yet, their arguments were not insincere, nor were they designed merely to shore up the reputations of those who made them. Indeed, in diplomatic cables and in secret documents on the conferences, American officials repeatedly voiced moral 69 71

70 FPD (1978, Volume 14, 61). FPD (1978, Volume 14, 55). FPD (1978, Volume 14, 67), emphasis added.

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support for the basic ideas that underwrite the principle of proportionality. For example, in his classified report on the US response to the first conference in 1974, head US delegate George Aldrich explained that many delegates were “insensitive to the compromises that the law must make.” Furthermore, “many of the less developed countries seemed unable to cope with the distinction between ‘unavoidable suffering’ and ‘unnecessary suffering.’” With respect to the idea that criminal responsibility should be based on intent, Aldrich argued that If various prohibitions are to be absolute, and without reference to intent or fault, and if criminal responsibility is to be retained for violation of the law of war, then there is the possibility of using the law as a means of denying humane treatment to prisoners, as happened to American prisoners of war in Vietnam.72

This comment suggests that the United States had sincere moral concerns in using the intention/side-effect distinction to design IHL. Not only would it provide some flexibility to US combat operations but it would also protect civilians from deliberate killings and POWs from inhumane enemy treatment.

Conclusion On May 27, 1949, in a committee meeting devoted to the question of whether the Geneva Conventions should include a Preamble, the chairman of the meeting, Georges Cahen-Salvador (France), called attention to the historic significance of the Conventions. Referencing the Universal Declaration of Human Rights and the “principles of the French Revolution,” he claimed that the Preamble should include a general set of principles that call attention to the need to protect the victims of war.73 In particular, he argued that the Preamble should set down rules “wide enough in their scope, to constitute by themselves, a great advance on the past, a moral revolution, as it were, in the history of mankind.”74 Though the negotiating parties decided against including a preamble in the Conventions, the fact that they talked about the Conventions in terms like this indicates the grand historical significance that states attributed to the four treaties that were signed in August of 1949 and ratified soon thereafter. Something similar might be said about Protocols I and II. Judged in comparison to the loosely defined rules and regulations that governed military decision-making in the Second World War, and 72 73

Foreign Relations of the United States: http://history.state.gov/historicaldocuments/ frus1969–76ve03/d235. 74 FPD (2-A, 696). FPD (1949, Volume 2-A, 696).

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indeed in all previous wars, the Geneva Conventions of 1949 and the Additional Protocols of 1977 do represent something like a moral revolution in the history of humankind. But in light of the fact that states designed some provisions of the Geneva Conventions and Additional Protocols to enable them to use military strategies that kill or injure civilians, albeit incidentally, we should conclude that they represent at best an unfinished revolution. For realists and critical legal theorists, moral rhetoric is hypocrisy. Political agents use it to advance their interests, to manipulate other people, and to disguise their intentions – in other words, to appear to be virtuous as Machiavelli might put it. Though I do not deny that states and non-state actors often use moral rhetoric hypocritically, the evidence I have reviewed in the last two chapters suggests that they are often sincere in their efforts to condemn and restrict deliberate attacks against civilians in war. During the negotiations over the Hague Regulations and the Geneva Conventions, state officials frequently expressed interest in setting limits on deliberate killing. More importantly, these concerns were reiterated in secret memos, reports, and personal memoirs of the conferences, a fact that limits our uncertainty over whether states had a genuine interest in restricting intentional attacks against the civilian population. Furthermore, the evidence suggests that emotional framing plays an important role in negotiating and designing the laws of war. Not only did empathic concern motivate activists such as Henri Dunant to strengthen legal norms for protecting the victims of war, but in addition diplomats frequently used the intention/side-effect distinction to negotiate particular treaty provisions, ranging from the Martens Clause to the principle of proportionality. With respect to the principle of proportionality, the documentary record suggests that some states were not fully convinced that this principle should be included in positive IHL, and thus one might argue that this contradicts my view that the persuasiveness of the norms of war rests on their emotional resonance. In this case it seems that the powerful got what they wanted, and the weak suffered what they must. Although power differentials clearly seem to have played a role in this case, even here the primary disagreement had to do with whether the principle of proportionality would limit intended killings. The critics argued that it could potentially increase intended killings through plausible deniability. Yet, for powerful states such as the United States the principle of proportionality was “as far as the law could reasonably go,” as the head US delegate George Aldrich put it.75 This

75

FPD (1978, Volume 14, 67).

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suggests that even though the principle of proportionality does resonate with the intention/side-effect distinction, it found its way into the laws of war in part because of the compromise that it forged between realism and idealism. This suggests that there is room for improvement in IHL. Indeed, in the concluding chapter I argue that the key to improving IHL lies in narrowing the gap between realism and idealism by increasing the degree of moral concern that people have for incidental civilian fatalities, which, as I mentioned in Chapter 1, represents a significant proportion of the overall casualties of modern warfare.76 The evidence reviewed in the last two chapters shows that by influencing how states define compliance, moral intuitions concerning intentional harm have enabled states to legally justify military policies that incidentally kill large numbers of civilians. States also frequently use the intention/side-effect distinction to deflect criticism of their military policies, not only in contemporary politics but also in earlier eras. As US General Omar Bradley stated in a post-World War II testimony to the House of Representatives, “I do not advocate a wanton destruction of cities or people, but it is obvious that workers live near factories, and that if you bomb…factories, you may bomb the people.”77 What this implies is that the factories were aimed at, and the people were killed incidentally. Although it is unrealistic to presume that the intention/side-effect distinction can be completely expunged from the law of armed conflict, in the following chapter I argue that it can be de-emphasized by recruiting the universal capacities for perspective-taking and empathy to increase the degree to which people care about unintended side-effect killings and the indirect effects of war. Indeed, I argue that there are compelling moral reasons to try to restrict the permissive effects of IHL, and in so doing to try to bring the moral revolution launched in Geneva in the late 1940s to its logical conclusion.

76

Wise (2017).

77

Quoted in “Bombing Civilians,” page 82.

8

Conclusion Moral Emotions, Permissive Effects, and the Rationalization of International Humanitarian Law

The steady development of IHL in modern international society represents a peculiar kind of moral progress. On the one hand, IHL is a product of a seemingly random array of events and chance occurrences: The arms race in Europe that caused Russia to summon an arms control conference at The Hague in 1899, the unique devastation of World War II, the signing of the Geneva Conventions in 1949, and the rise of national liberation movements in the postwar era that critically shaped the debates over the Additional Protocols of 1977. On the other hand, the fact that political and military elites in the Warring States era of ancient China and Muslim legal theorists in early Islamic civilization defended similar norms for constraining the use of violence several centuries ago indicates that the progress we have experienced in the history of international society may not be all that random after all. Indeed, the evidence shows that these norms are neither culture-specific nor are they based merely on rational cost-benefit calculations, as many IR theorists argue. Instead, they are based on cognitive-emotional predispositions that bias the development of cultural norms. But IHL is peculiar in another way as well. For although the moral intuitions that underlie the laws of war impose restrictions on what states can do in battle, they also generate permissions: States cannot intentionally kill civilians, but they can target military objects that kill civilians as an unintended side effect – a permissive effect that can allow for quite a lot of death and destruction.1 My findings suggest that the moral intuitions people use to think about the ethics of killing in war can sometimes make it difficult to protect civilians from incidental harm. Although the laws of war do require states to take precautions to minimize civilian deaths, as presently constituted they fail to duly recognize the rights and interests of civilians. Presuming that the war in question is morally justified, i.e., that it satisfies relevant ad bellum criteria of just cause, right

1

Cronin (2013) and Wise (2017).

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intention, right authority, and so forth, civilians are not entitled to absolute immunity from wartime risks. However, they are entitled to equal consideration for how these risks are distributed. The law grants states fairly wide discretion for how to weigh military versus civilian interests under the principle of proportionality, a discretion that it does not grant them in the case of intended civilian killings. After summarizing my argument and reflecting on its implications, in this conclusion I argue that we have compelling moral reasons to be just as concerned about unintended civilian casualties as we are about intended civilian casualties. Moreover, I argue that IHL should require a more equitable distribution of risks when it comes to comparing military advantages and incidental civilian losses. In practice, this will often require that states take on higher wartime risks to themselves when civilian lives are at stake. Since the permissive effects of IHL are based, in large part, on cognitive-emotional heuristics such as the intention/side-effect distinction, implementing this will require institutional mechanisms that check the tendency to treat intended deaths as so much worse than unintended and indirect deaths.

Summary of the Argument and Its Implications In On the Law of War and Peace, pre-Enlightenment theorist Hugo Grotius famously argued that even if there were no God, this would not imply that everything is morally permitted, for even in a world without God, there would be such a thing as natural law. For Grotius, as for other natural law theorists, the strictures of natural law are based upon the facts of human nature. While Catholic just war theorists such as St. Thomas Aquinas believed that natural law is the word of God written into the hearts of humankind, Grotius argued that natural law is based upon the natural sociability of human beings: We discover or deduce the strictures of natural law by considering what rational, sociable individuals would choose as rules of law for governing their societies. One central tenet of natural law moral theory is that human beings have a shared moral conscience that transcends cultural differences.2 In this book, I have shown that this central insight of natural law theory is in large part correct. Drawing on recent findings in cognitive neuroscience, social psychology, and evolutionary moral psychology, I have argued that the laws of armed conflict are grounded in the emotional wiring of the brain. Most human beings have emotional abilities for perspective-taking and empathic concern, and when people evaluate the ethics of intentional 2

Cicero (2008) and Grotius (1925).

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killing in war, they think from a shared moral grammar of cognitive heuristics. Moreover, I have shown that these cognitive and emotional predispositions have two principal effects on the laws of warfare: restrictive effects that outlaw certain tactics and permissive effects that create space for decision-making discretion. One important implication of my argument is that civilian protection norms are not merely based on culture-specific values, but rather that they are broadly, albeit not strictly, universal. To defend this view, in Part II, I examined the evolution of civilian protection norms in three different cultures: Warring States China, the early Islamic empire, and early medieval Europe. In particular, I used primary textual sources and secondary literature to establish the conclusion that very similar moral and legal norms arose in these three different cultures. Specifically, I showed that a complete explanation for how these societies converged on similar cultural norms must incorporate the theory of moral cognition sketched out in Part I. In Chapters 3 and 4, I showed that despite the varying material and cultural circumstances that people in ancient China and early Islam confronted, these civilizations nevertheless converged on rules of war that prohibit the wanton slaughter of civilians. In Chapters 5, 6, and 7 I examined the development of civilian protection norms in Western Europe and modern international law. Although there were inklings of the idea of civilian immunity in ancient Greek philosophy,3 the norm arose in Catholic just war doctrine with the Peace of God movement and it was eventually codified in modern IHL in the late nineteenth and twentieth centuries. In these chapters, I argued that even though the jus in bello norms of war have changed quite dramatically over the course of international history, my claim that they are based in evolved moral sentiments and beliefs helps explain the historical trajectory of the principles of distinction and proportionality, from a set of religiously sanctioned moral rules for restricting the use of violence between Christian Europeans to a complex body of positive laws for governing the use of force for all of humankind. Yet, as I argued in Chapters 6 and 7, the emotional moral intuitions that underlie the laws of armed conflict not only set restrictions on what states can do in battle but they also generate permissions. As I showed in Chapter 6, the intention/ side-effect distinction helped form the basis of the concept of lawful military targets in IHL, and it was also used to try to make sure that the legal restrictions on air warfare would be kept to a minimum. 3

In Book V of Plato’s Republic, Socrates and Glaucon discuss the rules of war that should prevail among the Greeks, including rules against burning houses and indiscriminate killing (470a–471c). See O’Driscoll (2015) and Ober (1994).

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Although IHL has certainly developed since the 1940s, particularly with respect to the restrictions placed on carpet-bombing and tactics designed to spread terror in Additional Protocol I, state officials still use the intention/side-effect distinction to deflect criticism when things go awry. Since a large percentage of civilian deaths in war are unintentional and indirect, IR scholars, policymakers, and activists need a better understanding how these deaths can be made more salient from a moral point of view. After discussing the theoretical implications of this book, I conclude with some thoughts on how this might be done. How far does the theory of moral psychology travel, and what implications does it have for the broader study of international relations? While the focus of this book has been the laws of war, the broader implications for IR theory are potentially quite significant. Over the last three decades, the literature on norm dynamics has shown that moral ideas play an important role in the evolution of international institutions, especially international human rights law.4 Yet, with the exception of Micheline Ishay’s work on the similarities between Eastern and Western ideas about human rights,5 much of this literature has focused on the socially constructed nature of international human rights. Human rights ideas are clearly a product of contingent historical circumstances and culturespecific moral values. Were it not for the Enlightenment, then ideas about human rights may not have arisen at all; even if they did, they would have been very different. However, Enlightenment humanism played on psychological capacities for perspective-taking and empathy – particularly when it came to arguments about torture, cruel and unusual punishments, and public executions.6 While the idea of equality intrinsic to the modern human rights regime does not seem to be universally recognized, the theory set forth in Part I can help explain how such values might become universal over time.7 Moral intuitions may also play an important role in shaping international norms that govern the global economy, including the free trade and foreign aid regimes. By design, my focus here has been on a small subset of moral intuitions: those that regulate how people think about the ethics of killing and harming others. But as many philosophers and psychologists recognize, the moral domain is vast, regulating all areas of social interaction and individual choice. The moral mind not only shapes how people think about the ethics of killing but also how people think about the distribution of wealth, power disparities between men 4 5 7

Finnemore and Sikkink (1998); Keck and Sikkink (1998); Sikkink (2011). 6 Ishay (2008, Chapter 1). Hunt (2007). For a moral psychological approach to universal human rights, see Carchidi (2020).

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and women, and inequalities in the global political economy. A better understanding of the moral psychology of distributive justice may help IR scholars learn more about the development of international economic norms. In addition, it may help us better understand why global inequality persists, and how to motivate people to mitigate it. On the one hand, expanding networks of trade, internet connectivity, and globalization have almost certainly increased the extent to which affluent people care about the plight of the global poor. Yet, on the other hand, the problem of global poverty still persists. As philosopher Peter Singer argued in his famous essay “Famine, Affluence, and Morality,” part of the problem has to do with the way we think about our moral obligations. For most people, giving to famine relief to prevent starvation is an act of charity, not a hard-and-fast obligation. Yet, most people believe that intentionally killing the same number of people would be an irreparable moral wrong. This implies that intuitions about the differences between killing and letting-die likely shape the evolution of global economic norms. Finally, while the bulk of my argument has emphasized the more positive aspects of human nature and moral psychology, the general framework can also be applied to understand the negative aspects of moral thinking, feeling, and acting. A large part of morality is about promoting prosocial interaction. But this is not all there is to morality. Indeed, as the discussion of Islamist extremism in Chapter 4 and strategic bombing in Chapter 6 showed, a large part of moral psychology is devoted to finding moral justifications for violence. In other words, morality is not just a restraint but it can also be an enabler. As such, part of the problem with reducing violence has to do with finding ways to ensure that the more compassionate and more reasonable side of our nature gains the upper hand. Rationalizing the Laws of War: Coercive Power and the Principle of Affected Interests IHL was created to reduce the cruelties of war to the greatest extent possible, and yet if the argument I have made in the preceding chapters is correct, it allows states to kill on a fairly massive scale, provided that the principles of distinction, proportionality, and precaution are followed. Just war theorists and international lawyers may have reasons for distinguishing between intended and unintended killings, and they may have reasons for believing that the principle of proportionality provides the right way to think about the ethics of unintended side-effect killings. But the argument I have made in this book suggests that the principles of distinction and proportionality are in large part a contingent effect of how

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the brain happened to evolve to help human beings evaluate moral problems and dilemmas. Moral intuitions evolved not to help people think about the greatest good for the greatest number, nor did they evolve to help people think about how to apply the categorical imperative. Instead, moral capacities and intuitions evolved to enable people to survive in an environment that required coalitional affiliations and cooperative action. When states designed the laws of war, they drew on moral emotions and beliefs that had helped their ancestors survive in a competitive social, political, and material environment. As a result, the moral intuitions that inform the laws of armed conflict are merely a contingent effect of the way that neural networks and mechanisms happened to evolve, and therefore they may have no moral justification on their own. The intention/side-effect distinction raises morally important considerations – e.g., it seems intuitive that intended harms are morally worse than unintended harms – but in order for it to serve as a justifiable rule of action, it must be grounded in some broader principle that possesses independent moral justification. As the philosopher John Rawls suggests, the goal of moral theory is not just to characterize our judgments; instead, it is to reach a state of reflective equilibrium where our judgments are based on a principled rationale.8 If no such rationale is available, then our judgments may need to be revised. In this section, I argue that even though it is sometimes permissible to distinguish between intended and unintended harms in order to attribute responsibility for collateral damage deaths, the degree of decisionmaking discretion that IHL currently allows is morally unjustifiable. IHL does require states to take feasible precautions to minimize harms to the civilian population, but it fails to specify precisely what constitutes “feasible precautions,” and, what is more, it does not seem to require states to equalize the distribution of risks between soldiers and civilians. Instead, it permits states to favor the welfare of their own soldiers over that of the civilian population. Favoring compatriots over foreign civilians may make intuitive sense – it fits well with the intuition that we have special obligations to people within our own sphere of concern – but it conflicts with the ideas of impartial justice and equal consideration. And even though the intention/side-effect distinction is intuitively compelling, it exaggerates the moral significance of intentions. With respect to unintended killings, civilians are entitled to equal consideration and an equitable distribution of collateral risks. In most situations, this will require states to take on additional risks to protect civilians – a conclusion that

8

Rawls (1999a, 43).

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bears a strong resemblance to Walzer’s principle of “due care.”9 However, I make the additional claim that the laws of armed conflict should be grounded in the principle of affected interests, which deemphasizes intentions. In what follows, I briefly explain why the affectedinterests principle provides a useful way to think about the morality of killing in war, and then I explore the ramifications it has for IHL and the argument I have made in this book. Moral Autonomy and Coercive Power: Why Military Force Requires Political Justification The first leg of the argument builds on an irrefutable truism: Military violence is supremely coercive. Not only is its main objective primarily coercive in nature, but it is a type of coercion that works its way in the world by killing hundreds of thousands of people – many of whom have little to no responsibility for the dispute in question. Therefore, more so than any other form of coercion, military violence requires special justification. In particular, it has to be justified to all individuals who are potentially subject to the coercive power of the state. The need to justify a course of action arises in any situation where the interests of some individuals are seriously affected by the behavior of other people. All people have the right to hear and to dispute the reasons for why they are treated in certain ways. To deny them this right is to degrade their moral worth. As such, when the actions of one individual potentially affect the interests of others, these actions should be justified to all of the affected parties. However, the kind of justification that needs to be given depends on the number of interests that are affected, and it also depends upon their level of moral significance. If an action affects a small number of relatively minor interests, then all that may be required is an explanation for why the action is necessary. However, if a decision affects a large number of highly significant interests, then something more is required. At the extreme, it may require democratic participation in how the decision is made.10 However, when this is not possible, as it usually is not in the case of war,11 decision-makers are required to act on norms that all those affected would choose as rules of action.12 Although it may be difficult to know for sure what principles people would choose, human nature being what it is, we can safely assume that people generally prefer lesser to greater risks to their lives and well-being. In the following subsection, I argue that the principle of affected interests requires that the risks of war 9 11

10 Walzer (1977, 156). Abizadeh (2008); Goodin (2007); Benhabib (1996). 12 Song (2012). Habermas (1990, 66).

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be equitably distributed regardless of whether they are intentional. In this subsection, I explain why we should adopt the principle of affected interests as I interpret it. Political power usually requires moral justification. Not only do political decisions affect the interests of many people, but they usually affect fairly important interests – e.g., the interest in maintaining an adequate living standard. Many democratic theorists argue that since political decisions affect the fundamental interests of a great many individuals, they need to be democratically justified.13 This is because political decisions typically involve organized coercion. As David Miller defines it, coercion involves forcing someone else “to undertake some relatively specific course of action by communicating an intention to cause bad consequences if that action is not performed.”14 Political coercion is highly problematic because it threatens moral autonomy, and moral autonomy is a particularly weighty moral interest. As the term implies, moral autonomy involves the idea of self-rule. To be an autonomous agent means that one is, to the greatest extent possible, only subject to the rules or norms that one directly chooses. On the Kantian view, “a person [acts] autonomously when the principles of his action are chosen by him as the most adequate possible expression of his nature as a free and equal rational being.”15 To be morally autonomous, one must act in accordance with the moral law, or what Kant refers to as the categorical imperative. In the republican account of autonomy,16 people are free and autonomous to the extent that their actions are not subject to the arbitrary will of another. In both views, coercion is a moral problem because it intrinsically threatens autonomy. To render coercion consistent with autonomy, one must be able to see oneself as the author of the actions to which one is subject. This is why democratic states are justified in coercing their citizens, i.e., because they have taken part in the process of law creation by voting for elected officials, voting on ballot measures, etc. When direct participation is not possible, those in power must see to it that the interests of all affected parties are adequately considered. That is, they must act on the principle of affected interests. The principle of affected interests holds that an action is morally permissible if it is consistent with norms that would be chosen by all affected individuals.17 Warfare clearly constitutes a form of political coercion, involving as it does the use of force to alter the behavior of other people. What is more, 13 15 17

14 Goodin (2007) and Benhabib (1996). Miller (2010, 114). 16 Rawls (1999a, 222). Pettit (1996) and Abizadeh (2008). The principle of affected interests is based on Habermas’s discourse ethics. See Habermas (1990, 66).

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it involves killing, and on a fairly massive scale at that. As such, it needs to be justified by the principle of affected interests at each level of decisionmaking – i.e., at the political, strategic, and tactical levels. At the political level, states are required to make sure that the interests of others are taken into consideration when they decide to wage war. Working through international institutions such as the United Nations Security Council is one way to do this, requiring, as it does, states to justify their policies to a broader international audience. Also, this is one reason why declarations of war make good moral sense. As Eric Grynaviski argues, when states go to war without publicly declaring their grievances beforehand they effectively make themselves the sole judge in their own case, and this overlooks the rights of outsiders. In his view, “Even if an aggressor believes it has just cause, the target’s community has the right to hear and dispute the aggressor’s claims. Otherwise, force replaces argument.”18 When a state declares war, it respects the right of the target community and the rights of innocent bystanders to consider and potentially dispute the claims of the aggressor. In so doing, the state respects their moral worth, for the notion of respect implies giving others the opportunity to make judgments on “actions that affect them.”19 Here I argue that similar considerations should apply to the strategic and the tactical levels of military decision-making. States should not be required to declare their strategies and tactics in public, as this would undermine their strategic advantage and hence threaten national security. But they should be required to ensure that their strategies and tactics “take into account the perspectives of different individuals,” as Grynaviski puts it in reference to the obligation states have to declare their wars.20 Since armed hostilities increase the risks of death and injury, military strategies and tactics require an especially powerful form of political justification. When states wage war without tailoring their policies to reflect the legitimate interests of those who are potentially subject to the state’s coercive force, they threaten the autonomy of target communities and innocent bystanders, including civilians. The ideal of moral autonomy does not just require that people be able to hear the reasons for why they are treated in a certain way, but rather it requires that they be able to see themselves as authors of the social forces to which they are subject. Ideally, this means that people must expressly or tacitly consent to the coercive military force of the state. Since this is impossibly demanding, the next best option is to say that states are required to ensure that their policies reflect the interests of those on the receiving

18

Grynaviski (2013, 252).

19

Grynaviski (2013, 253).

20

Grynaviski (2013, 254).

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end of military power. In practice, this would require states to ensure, to the best of their ability, that the risks of military operations are equitably distributed between soldiers and civilians, irrespective of considerations that are arbitrary from a moral point of view, e.g., race, class, gender, ethnicity, and national identity.21 To understand the policy implications of the affected-interests principle, it is useful to compare it with Walzer’s due care principle. In Just and Unjust Wars, Walzer argues that the doctrine of double-effect does not provide sufficient protections for civilians, and that it should be amended with the principle of due care.22 As commonly interpreted, the principle of due care requires states to take measures to ensure that civilian lives are spared, even when this means taking greater risks on their own soldiers,23 provided, of course, that this would not unduly sacrifice the legitimate ends of the war. As a general principle, I am in agreement with Walzer’s idea of due care. As I interpret it, the affectedinterests principle helps us better understand what counts as due care: States provide due care to civilians to the extent that they act on norms that could meet with their rational consent. In most cases, this will require states to take on higher risks to save overall civilian lives. However, in exceptional situations this rule may be relaxed. For example, if a democratic state intervenes in another country to stop a genocide, and the only way to do this is to use tactics that expose civilians to higher short-term risks, then it would be permissible for the intervening state to use these tactics. The principle of affected interests requires that states treat foreign civilians no differently from their own civilians. Indeed, a useful rule of thumb for military commanders would be to act as if enemy civilians in warzones are conationals, since this would help to counteract the natural tendency to favor one’s fellow civilians. The reason for this is that human beings are morally equal, and to act in ways that impose greater risks on foreign civilians than one would otherwise impose on one’s own civilians is to act in a way that violates the basic ideal of equality – an ideal that is central to the principle of affected interests. Moreover, as David Luban points out, the idea that soldiers have a moral right to transfer greater risks onto enemy civilians than they would transfer onto their own civilians overlooks the fact that soldiers bear a very different relationship to enemy civilians than they do to their own civilians. With respect to their own civilians, soldiers are generally interested in making sure that they have adequate protection from national security threats. With 21 23

22 Rawls (1999a, 122). Walzer (1977, 156). Sagan and Valentino (2018, 549).

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respect to foreign civilians, however, they are generally the cause of the threat that civilians must face.24 Since people have an obligation to prevent themselves from threatening the lives of others, soldiers have a special obligation to take on greater risks to protect the lives of foreign civilians.

Affected Interests and Unintended Killings: Ramifications for International Humanitarian Law As I interpret it, the principle of affected interests implies that states are required to act on norms that reflect the interests of all affected parties, especially innocent civilians. In practice, it requires that states act on rules of engagement that equitably distribute the risks between soldiers, on the one hand, and civilians, on the other. Because soldiers are usually better equipped and better trained than civilians, and because it is essentially part of the job description that soldiers expose themselves to risks, they should take on higher risks as a matter of right, regardless of whether the risks in question are imposed intentionally or unintentionally. When lawyers or war crimes courts attribute responsibility for intentional or unintentional killings, the epistemic position of the soldier must be taken into account, and they should be exonerated for clear accidents and miscalculations. I do not endorse a strict liability model of legal or moral responsibility.25 However, political leaders or soldiers that knowingly impose greater risks on the civilian population than they take onto themselves violate elementary considerations of fairness. The affected-interests principle is demanding, but it is not excessively demanding. It would not forbid all strategies that kill or harm civilians nor would it put soldiers at risk of prosecution for pure accidents or reasonable mistakes. These caveats aside, the affected-interests principle reduces the moral significance of intentions and increases the moral significance of the consequences that military tactics have for civilian populations. That said, it is not strictly consequentialist.26 This is because it requires that the risks of war be more equitably distributed; it is only secondarily concerned about aggregate levels of pain and suffering. Why are intentions less morally relevant than conventional morality considers them to be, and why does conventional morality “get it 24 26

25 Luban (2014, 284). Epstein (1973) and Posner (1973, 205). A long-standing debate in ethics examines the moral significance of consequences versus basic rules of justice. Although the argument I present here is broadly Kantian, consequences are clearly relevant for evaluating the morality of actions. For example, while Rawls and Habermas both work in the Kantian tradition, they each take consequences into account in their overall moral theories. See Rawls (1999a, 26) and Habermas (1990, 65).

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wrong”? There are two interconnected reasons. First, as I have shown in the preceding chapters, the laws of war emphasize intentions mainly as a result of their emotional salience – i.e., because people intuitively consider them to be morally significant. In some cases, our moral intuitions “get it right,” and we should follow our moral instincts. Yet in other cases, our moral intuitions can lead us astray, and they can cause us to adopt beliefs that are morally unacceptable. In some cases, they are downright repugnant. In-group pride and patriotism can be morally laudable, but, taken to an extreme, they can lead to bigotry and racism. It is perfectly natural for human beings to have strong sentimental attachments to individuals within their sphere of concern, and one might even argue that out-group derogation, is in some sense, natural. But this does not make it morally acceptable, nor does it suggest that the worst elements of human nature cannot be overcome with moral training and education. My analysis has shown that the emphasis placed on intentions in the laws of armed conflict has the perverse effect of rendering the law more permissive in certain cases, thus making it easier for states to expose civilians to heightened risks. But even though a moral belief may have perverse consequences, this does not necessarily imply that it is wrong. However, in this case we need to consider why people are inclined to adopt the belief in the first place. As I explained in Chapter 2, people are inclined to judge that intentional killings are morally more serious than unintentional killings because our brains are primed to react more emotionally to intended harms than they are to react to unintended harms. Our moral beliefs are merely a result of long-term evolutionary processes that led our ancestors to focus on intentions when it came to evaluating individual actions. In other words, our moral judgments are a result of contingent facts about how our brains work. They do not necessarily correlate with objective moral facts, if there are any such things.27 Indeed, although mental states are relevant for evaluating how people act, some studies show that our moral intuitions are responsive to features that may not be morally relevant. In the famous trolley experiments that I reviewed in Chapter 2, Josh Greene shows that what people really respond to in the footbridge case, i.e., the one where they have to consider pushing the man off the bridge, is the application of personal force, an experience that would make most people feel squeamish. But whether an action is done in close proximity,

27

It is beyond the scope of this book to address the philosophical debate over whether there are objective moral truths. See Mackie (1977) and Railton (1986).

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or whether it touches off a visceral disgust reaction, has little bearing on its overall moral relevance.28 Moreover, in the case of armed conflict, the problem is not just that people are responsive to things that are not morally relevant. It is that an overreliance on conventional moral judgments can have the perverse effect of enabling states to elide accountability for killing civilians. Although IHL does require states to take “feasible precautions” to minimize civilian harm, it never explicitly defines what constitutes a feasible precaution,29 nor does it require states to take on higher risks to avoid civilian losses.30 In my view, this is because most people perceive unintentional side-effect killings as less morally significant than deliberate killings. Intentions are clearly morally important, but there is no reason for why intended killings should rank so much higher on conventional moral and legal scales than unintended killings. Since the neuroscience evidence shows that conventional moral intuitions are merely responding to emotional reaction patterns, we need to consider whether this is morally significant enough to leave IHL as it is. Because the intention/side-effect distinction has the permissive effect of enabling states to legally expose civilians to heightened risks, it would be in the interests of civilian populations to require states to take on added risks when civilian lives are at stake. Since unintended killings threaten the moral autonomy of individuals just as much as intended killings, laws designed to respect autonomy should increase the weight of incidental killings. Reason and Emotion in International Humanitarian Law How does this square with the argument I have made in this book? Indeed, if the argument I have made is right, then the intention/side-effect 28

29 30

Greene (2014). Greene argues that the neuroscience evidence favors consequentialism over Kantianism. In his view, the Kantian style of moral reasoning primarily consists in rationalizing preexisting emotional intuitions about what is right or wrong. It is not devoted to “figur[ing] out what’s right or wrong,” (718). I have two responses. First, although I agree with Greene that neuroscience can be used to debunk some of our moral intuitions, I am skeptical that it can help us to decide between competing normative theories. At most, it can help us figure out whether our intuitions are based on morally relevant considerations. Second, Greene’s claim that Kantian ethical theories merely rationalize preexisting emotional intuitions is simply incorrect. As with any theory, Kantianism begins with certain intuitions (e.g., that killing is wrong), but it seeks to ground these intuitions in broader principles that can withstand critical scrutiny. Luban (2014, 294). However, if taking feasible precautions to minimize civilian suffering is to mean anything, it certainly requires that soldiers take on some risks. That said, my point is that the law should be clearer by obligating states to take on higher risks than they impose on the civilian population. The law cannot require heroic sacrifices, but it can close loopholes that enable states to evade accountability for unintended civilian losses.

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distinction is based on evolved moral sentiments, hardwired into the very structure of the brain. Furthermore, I have argued that affect-backed moral norms are more likely to survive the process of cultural evolution than are affect-neutral norms. If the intention/side-effect distinction has remained a stable feature of the laws of war up to this point, then why propose that the law be based on the principle of affected interests? To be clear, my claim is not that the principle of affected interests should subvert the intention/side-effect distinction, but rather that the law should require equal consideration for the lives of civilians regardless of whether they are killed intentionally or unintentionally. One can still use the intention/side-effect distinction to ascribe blame or punishment even if the threshold for incidental harms is raised to a higher level. In other words, utilizing the intention/side-effect distinction to attribute a greater degree of blame for an intended harm is fully consistent with utilizing the principle of affected interests to raise the threshold for what one considers to be a war crime by placing greater weight on unintended harms. Furthermore, although intended harms push our emotional buttons to a much greater degree than do unintended side-effect harms, the latter still have the capacity to have an emotional impact on how we feel. For example, regardless of whether South Vietnamese pilots intentionally attacked Kim Phuc and her fellow villagers with napalm, the picture of her running through the streets with melting skin still has the power to evoke sympathetic concern. As complex moral creatures, human beings have the capacity to experience cognitive and emotional reactions to a wide variety of moral stimuli, including intended harms and killings. This means that when we design legal institutions, we need to think more clearly about which of our many cognitive and emotional response patterns we are going to institutionalize. Our legal institutions should certainly reflect core ethical intuitions, but they should also be backed up by the best reasons. This is what I mean by suggesting that IHL be rationalized: that it be adapted to reflect those moral intuitions that can survive critical scrutiny. The core insight here is that even though our moral intuitions oftentimes lead us in the right direction, they can sometimes lead us astray. Consider revenge. In some situations, revenge can be a highly effective mechanism for persuading rule-breakers to think twice before recidivating. What is more, it can establish one’s credibility for using violence – an effect that is particularly important for deterring third parties from thinking that one can be pushed around. But when it is taken to the extreme, the desire for vengeance can lead to vigilante justice and costly cycles of retaliation – not to mention collective punishment against entire nations, racial groups, or religious sects. Something similar can be said about

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indignation, a closely related emotion. Indignation can inspire movements for social justice and progressive change, but when left unchecked it can devolve into resentment. The rational response here is not to rid ourselves of emotions such as revenge and indignation, but it is to design our social institutions in ways that channel their benefits and mitigate their excesses. Although the affected-interests principle would require us to de-emphasize moral intuitions that are in large part innate (e.g., the intuition that intended harms are morally worse than incidental harms), it is consistent with other emotional response patterns that are also largely innate (e.g., compassion).Thus, my argument that IHL be rationalized is not intended to downplay the moral significance of emotions, but rather it is to call attention to the need to mitigate the perverse effects of the intention/side-effect distinction. As Renee Jeffery notes, reason helps check the “impartiality of our [emotion-based] judgments.”31 It helps us figure out when they lead us aright and when they lead us astray.

Final Thoughts: Moral Progress and the Laws of Armed Conflict In an essay on the philosophy of moral development, the psychologist Lawrence Kolhberg once said that the idea of universal justice, if there is such a thing, exists in a very “shadowy form” in the intuitive precepts that people use to think about moral problems. Drawing on Plato’s allegory of the cave, Kohlberg argued that the process of moral development is one where people come out of the cave into the light of reason. As I documented in Chapter 2, research shows that most people, including small children, use similar moral principles to reason their way through moral dilemmas, and other research shows that ethical judgments are often informed by quick, affective responses that conferred an adaptive advantage on human beings in the ancestral environment. In Kohlberg’s words, it appears that some elementary idea of justice exists in a “shadowy form”32 in the intuitive moral sentiments of most human beings, including small children. But as people interact with each other, they necessarily confront the fact that they have to justify their actions to others in ways that other people can understand. Simplifying Kohlberg’s theory of moral development, as people grow and mature, they confront new circumstances that provoke cognitive dissonance with their existing stage of development, which in turn requires them to construct new principles that can deal more adequately with the dilemma 31

Jeffery (2016, 214).

32

Kohlberg (1981, 47)

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or problem at hand.33 The process of reasoning, of having to justify one’s actions and judgments, whether individually or collectively, functions to educate one’s moral intuitions. It encourages people to develop toward adopting universal principles of justice that only existed in shadowy form in earlier stages of moral development. What Kohlberg said about the process of moral development for individuals could also be said about the process of social and legal development for whole societies and civilizations.34 Just as individuals develop from pre-conventional to post-conventional levels of moral reasoning, it is plausible that societies and civilizations experience wholesale developments in their social, political, and legal institutions, developments that are often referred to as revolutions. Revolutions take place when enough people decide that the existing framework of institutions that govern their lives fail to meet their basic needs or legitimate expectations. In the case of moral and legal institutions, change occurs through the critical use of reason. Moral ideas rise and fall, as it were, via the process of communicative argumentation.35 Although the history of the laws of war is fraught with nuance and complexity, the arc of their history clearly bends toward justice. From the general perspective of human history, IHL has advanced toward a more post-conventional stage of moral development. Yet as I have argued in this chapter, the laws of armed conflict have significant drawbacks. Not only does the anarchic structure of international politics make IHL difficult to enforce, but the laws of war actually enable states to expose civilians to significant risks of death and injury. Given the nature of war, this is to be expected. Yet, as I have argued here, basic considerations of fairness require that states who wage war take on higher risks than they impose on the civilian population. Because war is supremely coercive, states who go to war should be required to abide by operational principles that adequately reflect the legitimate interests of all affected parties. However, requiring that states take on such responsibilities is highly counterintuitive to most people. Since people tend to have a stronger sense of moral obligation toward those within their immediate sphere of concern, it makes intuitive sense to allow states to favor their own soldiers over foreign civilians. 33

34

According to Kohlberg (1981), there are three levels of moral development (the preconventional, the conventional, and the post-conventional), each of which is composed of two stages. In the pre-conventional level, people make moral judgments that are consistent with the dictates of authority figures. In the conventional level, people have internalized the moral code of their society. In the post-conventional level (stage-6), people reason from universal moral principles. 35 Pinker (2011, 636). Ishay (2008) and Crawford (2002).

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Moreover, it makes intuitive sense to regard intended killing as a bigger moral problem than unintended, side-effect killing. Rooting my argument in the idea that respect for moral autonomy requires that states act on principles that can be justified to all affected parties, I argue that IHL should require higher standards for how states deal with unintended risks. More specifically, it should be revised to make it more consistent with a post-conventional moral framework that reflects the interests of all. Although it may be difficult for states to comply with the exacting standards of the principle of affected interests, this does not by itself imply that they should not try. Indeed, as I pointed out in Chapter 2, people have powerful inclinations to favor people within their own sphere of concern, and in extreme circumstances this has led to abhorrent practices such as slavery, racism, or bigotry. Though it may be difficult for some people to overcome these psychological tendencies, they have strong moral reasons to try. Furthermore, it is possible to overcome the darker tendencies of human nature with what Abraham Lincoln called the “better angels of our nature.”36 Indeed, as I pointed out in Chapter 2, the evidence from social psychology and cognitive neuroscience suggests that it is possible to overcome intuitive in-group biases through perspective-taking and empathic concern. My suggestion here is that perspective-taking and empathy may also be useful in getting people to care more about how the risks of war are distributed. That is, perspective-taking and empathy may be useful in making the affectedinterests principle more salient. As I discussed in Chapter 2, realists and critical legal theorists argue that the techniques of power prevent international law from reflecting the interests of the weak and the vulnerable. Yet, if the argument that I have made in this book is right, one chief obstacle from preventing the laws of war from fully and adequately reflecting the interests of civilians are, paradoxically, the moral intuitions that underwrite our everyday moral judgments. To modify the basic shape of IHL so that it better reflects the legitimate expectations of civilians does not just require a moral revolution in the structure of the civilian protection regime, but in addition it requires a moral revolution of sorts in the intuitive ideas that people use to think about the ethics of killing in war. But if Kohlberg’s view is right, and if universal principles of justice already exist in shadowy form in the basic moral toolkit of most individuals, then perhaps what I am calling for is not a moral revolution in the strict sense. In the strict sense, a

36

Pinker (2011).

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revolution in moral ideals would require a radical reframing of our basic moral outlook. But if principles of justice already exist in shadowy form in our shared moral sense, and if the process of individual and social development is one of developing toward principles that can be justified to all, then the changes in the IHL regime that I am recommending here may simply amount to an advancement toward what our sense of justice may already require.

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Index

Afghanistan, 9, 18, 148, 155 Alba, Pedro de, 238 Al-Baghdadi, Abu Omar, 157–158 Aldrich, George, 262–263 Al-Mawardi, 133–135, 137 Al-Qaeda, 85, 120, 148, 152, 155–156 Al-Qaeda in Iraq, 152, 155–159, 161 Al-Shaybani, 133–134, 136–137 Al-Zarqawi, Abu Musab, 152, 156, 158–159 American Civil War, 57, 195, 198, 227 Ancient China and rule of law ideals, 101–103 and state formation, 93–99 and the ethics of war, 103–114 and Warring States political philosophy, 99 Antwerp, 232 Aquinas, St. Thomas, 150, 164, 170–171, 174, 185, 188, 266 Aristotle, 72, 82, 181 Atran, Scott, 151 Augustine, St., 104, 162–164, 170–171, 185, 188 Batson, Daniel, 41–44, 47, 49, 51 Begin, Menachem, 48 Bin Laden, Osama, 149, 154–156 Blix, Hans, 258 Bloom, Mia, 153 Bloom, Paul, 40, 48–52, 62 Bosnia, 92 Cahen-Salvador, Georges, 262 Canada, 261 Carpenter, Malinda, 61 Carter, Jimmy, 48, 258 Chamberlain, Neville, 227 Chechnya, 154 Choate, Joseph, 216–217, 219 Chomsky, Noam, 64

302

Churchill, Winston, 82 Cicero, 150, 181 Civilian immunity, 25, 81, 86, 115, 122, 126, 128, 135, 137–140, 145, 148, 150, 162–164, 166, 168, 170, 176, 186–187, 200, 228, 267 and absolute immunity from risks, 266 and civilizational discourse, 182 and equal consideration for distribution of risks, 266 and gender, 182 and gender norms, 167, 182, 186 and collateral damage, 6, 9, 11, 26, 54, 59, 80, 113, 183, 189, 209, 215, 264, 269–270, 277 and the direct effects of armed conflict, 9 and the indirect effects of combat, 9, 11–12, 80, 264 Civilian protection norms. See Civilian immunity Clattenburg, Albert, 242–243, 246 Combined Bomber Offensive, 194, 228 Confucianism, 98–99, 104–110, 117, 119 Consequentialism, 275, 277 Constructivism, 27–32, 121, 138–139, 147 Agentic constructivism, 29 Cramer, Myron, 228 Crawford, Neta, 9, 29, 69 Crimes against humanity, 27, 161 Critical theory, 20, 22, 263, 281 Cronin, Bruce, 59 Crozier, William, 208–209 Cultural relativism, 36 Czar Nicholas II of Russia, 197 De Beaufort, William, 219 De Waal, Frans, 40 Dehumanized perception, 36, 40, 75, 149 Dill, Janina, 80 Divergent cases, 14, 84–85, 119

Index Doctor’s Without Borders, 18 Doctrine of double-effect, 55, 170 Downes, Alexander, 220 Dresden, 193, 195, 226, 235 Dunant, Henri, 74, 240–241, 263 Eisenhower, Dwight, 229–231 Emotional framing, 12, 50, 59, 71, 74, 210, 218, 263 Empathy and civilian immunity, 73–75 and empathy skepticism, 48–53 and group identity, 46–48 and perspective-taking, 39–42 and the empathy-altruism hypothesis, 34, 40, 42–46, 53, 74, 116, 241 and the expanding circle of concern, 13, 21, 36, 39, 47, 71, 73 and unintended civilian deaths, 16 Dispositional empathy, 42 Egocentric empathy, 41 Empathic concern, 6, 12, 15, 34, 39, 42–47, 49, 51–53, 74, 76, 78–79, 84, 86, 110, 116, 119, 147, 151, 176, 178, 187, 263, 266, 281 Other-regarding empathy, 41 Spotlight nature of empathy, 48, 50, 118 State empathy, 42 Face-to-face diplomacy, 36, 71, 74, 81–84 Finnemore, Martha, 27, 29–30 Fisher, Admiral, 236 Fodor, Jerry, 65 France, 164–165, 221, 240, 257 Fry, Edward, 218 General Orders 100. See Lieber code Geneva Conferences 1947 Conference of Government Experts, 242 1949 Conference, 240–251 Additional Protocols Conferences, 257–262 Stockholm Conference of 1948, 242 Geneva Conventions and Common Article 3, 242 Gerges, Fawas, 152, 155, 158 Global Terrorism Database, 158 Goffman, Erving, 82 Greene, Joshua, 58, 61, 67, 183, 219, 276 Grimsley, Mark, 57 Grotius, Hugo, 4, 16, 36, 133, 172, 176, 179–184, 188, 266 Gruenther, General, 254 Grynaviski, Eric, 273

303 Habermas, Jürgen, 12, 30 Hague Conferences 1899 Conference, 196–211 1907 Conference, 211–220 1923 Hague Draft Rules on Air Warfare, 220–226 Haidt, Jonathan, 33, 38, 55, 66–68 Hamlin, Kiley, 62 Harding, Warren, 221 Harris, Arthur, 209, 235–236 Hiroshima, 195, 226, 227, 250 Hitler, Adolf, 74 Hobbes, Thomas, 100 Holmes, Marcus, 47 Horne, F.J., 232 Huber, Max, 242 Hume, David, 68 Hunt, Lynn, 51, 74 Hurd, Ian, 27 Ibn Tamiyyah, 135 Identifiable victim effect, 49 Intention/side-effect distinction, 10, 12, 15–16, 21, 24, 26, 31, 39, 54, 58–60, 72, 76, 79–80, 112–113, 160, 170–171, 174–175, 181, 204, 206, 209–210, 212–213, 215–216, 220, 226, 237, 240, 248, 251, 262–264, 266–267, 270, 277–278 International Committee of the Red Cross, 24, 195, 239, 241–242, 244–245, 250–254, 256–257, 296 International humanitarian law, 5, 19–20, 24, 87, 185, 238, 252, 255–256 Iraq, 9, 11, 25, 45, 69, 127, 146, 152, 155–158, 295 Ishay, Micheline, 268 Islam and Islamic state formation, 126–130 and the ethics of war, 130 and the sources of law, 123–126 Islamic State of Iraq and Syria, 14, 56, 85, 120, 122, 144, 148, 152, 155–159, 161, 296 Dabiq and Rumiyah, 158 Israel, 48, 152–154 Jabhat al-Nusra, 157 Japan, 221–222, 227 Jeffery, Renee, 279 Jordan, 156 Joyce, Richard, 63 Just war doctrine, 4, 15, 36, 74, 82, 92, 103–104, 120, 129, 131–132, 137,

304

Index

150, 162–164, 166–167, 170–174, 178–179, 184, 188–189, 239, 266–267 and jus ad bellum principles, 103, 130, 170–172, 174, 185, 188 and jus in bello principles, 12, 15, 84, 103, 120, 130, 162, 170–171, 174, 176, 183–184, 188, 240, 267 and revisionism, 174 and the enlightenment, 179–189 and the principle of due care, 271 Jus ad bellum principles, 180 Kahan, Daniel, 68 Kant, Immanuel, 68, 82, 272 Kantianism, 275, 277 Kelsay, John, 135, 137 Kinsella, Helen, 7, 167, 176 Kohlberg, Lawrence, 68, 279–281 Kohlberg’s stages of moral development, 279–280 Kunduz incident, 18 Lamm, Claus, 41 Laws of war and air warfare, 220, 244–249 and airborne projectiles, 199, 204–211, 219 and artillery bombing, 204–211 and asphyxiating gases, 83, 206 and carpet-bombing, 248, 251, 258 and cultural objects, 228–232 and drones, 220 and dum-dum bullets, 205 and indiscriminate weapons, 204–211 and lawful military targets, 15, 31, 74, 196, 210–211, 215, 220, 223, 230, 235–237, 267 and means of exterminating the civilian population, 246, 248 and merchant vessels, 25, 83, 215–220 and military occupations, 199–204, 256 and naval warfare, 211 and nuclear weapons, 249–257 and noninternational armed conflicts, 239 and prisoners of war, 24–25, 172, 186–188, 198, 200, 237, 239, 241–243, 251, 254–255, 257, 262 and protected persons, 245–248, 256 and protections for the natural environment, 239, 252, 256 and the spreading of terror, 258 and undefended locations, 204, 210–216, 229, 233 and World War II, 226–236

Brussels Declaration, 197–198, 200–201, 204 Martens Clause, 199–204, 241, 263, 285, 297 Principle of distinction, 6, 15, 21, 24, 79–80, 85, 112, 135, 160, 166–167, 170, 177, 182, 184, 186, 239, 248 Principle of precaution in attacks, 6 Principle of proportionality, 7, 11, 15, 79–80, 112–113, 135, 170–171, 174, 232, 239, 258, 260–261, 263, 266, 269 Principle of unnecessary suffering, 6, 197, 204–205, 262 St. Petersburg Declaration, 197, 204 Leahy, William, 231 Legalism, 84, 98–99, 100 Han Feizi, 116 Lord Shang, 96 Lewis, Mark, 94 Liberal institutionalism, 23–27 Lieber code, 198 Lieber, Francis, 198 Lincoln, Abraham, 51, 198, 281 Linguistic analogy, 35, 64–68 Moral grammar, 57, 68, 77, 103–104, 168, 181–182, 267 Universal grammar, 53, 65 Locke, John, 77 Luban, David, 274 Mahan, Alfred, 205–207, 211 Martens, Feodor, 201 Mass killings, 5, 14, 25, 27, 36, 75–77, 92, 161, 178 McKinley, William, 202 McPherson, James, 51 Mencius, 105, 108–109, 116–117 Mentalism, 65 Mercer, Jon, 59 Ming Dynasty, 3 Moore, John Bassett, 222 Moral cognition and communicative action, 78–80 and cultural variation, 64–68, 70–78 and evolution, 36–39 and extremism, 148–155 and group identity, 55–57, 152–154 and guilt, 68, 76, 110, 168, 175 and intentional harm, 57–59 and moral foundations theory, 66, 150 and neuroplasticity, 71–73 and revenge, 149, 154–155 and shame, 76, 183–184 and the desire for purity, 149–152

Index and the idea of moral progress, 279 and the institutionalization of beliefs and emotions, 31, 59, 78, 81, 278 and the laws of war, 53–64 and the reason-emotion debate, 21, 68–70, 277 Definition of moral cognition and judgment, 37–38 Naturalistic theory of moral cognition, 11, 14, 20–21, 28, 31–80, 138, 140 Moral psychology logic, 84, 115 Moral realism, 276 Moral universalism, 29, 35, 66, 159 Morale bombing, 194–195, 197, 209, 227–228, 232–236 Mozi, 84, 99–100, 102, 104, 109, 117–118 Muraviev, Count M.N., 198, 207 My Lai massacre, 25, 35, 45, 76 Myanmar, 11, 92 Nagasaki, 193, 226, 227, 250 Native Americans, 91 Natural law theory, 15–16, 100, 123, 150, 162–163, 172–173, 175, 177–179, 185, 188–189, 217–218, 266 Negativity bias, 77 New Delhi Conference of 1957, 252 Noncombatant immunity. See Civilian Immunity Norms Affect-backed norms, 13, 20, 32, 36, 75–77, 81, 139, 161, 163, 171–172, 278 Affect-neutral norms, 32, 75, 278 and the timing of emergence, 31 Convergence, 6, 13, 32, 67, 74, 122, 138 Durability, 13, 20, 31, 36, 71, 75, 77–78, 81, 138, 160, 167, 171 Emergence, 6, 21, 29–31, 121, 126 Epidemiological account of norm transmission, 75 Evasion, 5, 12, 85, 195, 215, 236, 277 Internalization, 27, 33, 87, 144 Norm diffusion, 28–29, 76, 206 Norm evasion, 80 Permissive effects, 6, 9, 11–12, 15, 20, 22–23, 26, 36, 54, 71, 78–80, 87, 189, 195, 199, 236, 264–267 Principle of proportionality, 21 Restrictive effects, 6, 11, 15, 20, 23, 36, 53, 78–80, 199, 205, 236, 265, 267 Structural-systemic theories, 73, 93, 121, 122, 126 Nuclear deterrence, 15, 249, 252–253 Nuremburg trials, 199

305 Obama, Barack, 238 Operation Rolling Thunder, 8, 26 Palestine, 154 Pape, Robert, 153 Parks, W. Hays, 19, 224 Peace of God, 24, 74, 162–171, 188, 267, 290 Pinker, Steven, 76, 78 Plato, 64, 68, 82, 279, 296 and the allegory of the cave, 279 and the ethics of war, 267 Pol Pot, 74 Principle of affected-interests, 12, 16, 271, 273–275, 278–279, 281 and an equitable distribution of risks, 16, 266, 275 and coercive power, 269–275 and unintended killings, 275–277 Principle of consilience, 83 Prinz, Jesse, 40 Problem of access, 81–82 Prophet Muhammad, 36, 123–124, 126, 129, 131–133, 139, 142, 160 Rational design theory. See Liberal institutionalism Rawls, John, 50, 160, 270 Realism, 7, 20, 22–23, 84, 101, 115, 263–264, 281 Reciprocal altruism, 36 Reciprocal enforcement logic, 84, 115, 139 Responsibility to Protect, 105, 115 Rodgers, William, 225 Romania, 251, 260–261 Roosevelt, Franklin, 82, 227 Rose, Uriah, 217 Roseway, David, 248 Rousseau, Jean-Jacques, 39, 117, 240 Royal Air Force (RAF), 194 Russia, 154, 198, 265 Rwanda, 43, 76, 92 Sadat, Anwar, 48 Sageman, Marc, 153 Salafism, 14, 151–155, 161 Saxe, Rebecca, 58 Schelling, Thomas, 49, 61 Seven Military Classics of Ancient China, 4, 106, 110, 113 Sherman, William Tecumseh, 195, 197 Shih, Margaret, 46, 51 Sikkink, Kathryn, 7–8, 27, 29–30 Singer, Peter, 47, 269 Singer, Tania, 41

306

Index

Smetana, Judith, 63 Smith, Adam, 41 Social identity theory, 56, 152 Solferino, Battle of, 240 Spaight, J.M., 215, 225, 233–234 Spring and Autumn era, 94 Stalin, Joseph, 74, 82 Stowe, Harriet Beecher, 51, 241 Strategic bombing, 10, 31, 85, 175, 189, 194, 196, 203, 207, 209, 215, 220, 224, 227–228, 232, 234–235, 239, 244, 269 Suarez, Francisco, 172–173, 175, 178, 185, 188–189 Sudan, 92 Suicide terrorism, 153 Sun Tzu, 4, 113 Sunni-Shia split, 132–133 Syria, 11, 92, 127, 152, 157–158, 259 Taoism, 99, 112 Tehran Conference of 1968, 256 Terror bombing. See Morale bombing Terrorism. See Moral cognition and extremism Tin-bor Hui, Victoria, 102, 111, 116 Tomasello, Michael, 61 Total war doctrine, 175, 189, 236 Trenchard, Hugh, 235 Turiel, Elliot, 63 Unobservables and the fundamental problem of reason attribution, 81

Vaish, Amrisha, 61 Vattel, Emmerich, 45, 83, 163, 172, 179, 185–187, 189, 240 Vietnam, 8, 25–26, 32, 45, 185, 239, 255–256, 260, 262 Virag, Curie, 118 Vitoria, Francisco, 53, 74, 83, 172–174, 176–178, 181, 185, 188 Walzer, Michael, 271, 274 Warring States China, 84, 94–99, 103, 116 Washington Conference, 222 Wendt, Alexander, 30, 73 Western Zhou era, 94 White, Andrew Dickson, 202, 216 Winning of hearts and minds logic, 84, 103, 113, 115, 139, 146 World War I, 209 World War II, 12, 15, 21, 53, 74, 92, 175, 189, 194–196, 199, 207, 215, 220, 223, 226, 228, 233, 235, 237, 239, 241, 244–245, 251, 255, 264–265 and the bombing of Rome, 229–231 and the bombing of the Abbey of Monte Cassino, 231 Wynn, Karen, 62 Xunzi, 98, 106, 108, 113, 115 Yarhi, Milo Keren, 47 Yezidi massacre, 158 Young, Liane, 58 Zhu Yuanzhang, 3

Cambridge Studies in International Relations (continued from page ii) 149 Brian C. Rathbun Reasoning of State Realists and Romantics in International Relations 148 Silviya Lechner and Mervyn Frost Practice Theory and International Relations 147 Bentley Allan Scientific Cosmology and International Orders 146 Peter J. Katzenstein and Lucia A. Seybert (eds.) Protean Power Exploring the Uncertain and Unexpected in World Politics 145 Catherine Lu Justice and Reconciliation in World Politics 144 Ayşe Zarakol (ed.), Hierarchies in World Politics 143 Lisbeth Zimmermann Global Norms with a Local Face Rule-of-Law Promotion and Norm-Translation 142 Alexandre Debs and Nuno P. Monteiro Nuclear Politics The Strategic Causes of Proliferation 141 Mathias Albert A theory of world politics 140 Emma Hutchison Affective communities in world politics Collective emotions after trauma 139 Patricia Owens Economy of force Counterinsurgency and the historical rise of the social 138 Ronald R. Krebs Narrative and the making of US national security 137 Andrew Phillips and J.C. Sharman International order in diversity War, trade and rule in the Indian Ocean 136 Ole Jacob Sending, Vincent Pouliot and Iver B. Neumann (eds.) Diplomacy and the making of world politics 135 Barry Buzan and George Lawson The global transformation History, modernity and the making of international relations

134 Heather Elko McKibben State strategies in international bargaining Play by the rules or change them? 133 Janina Dill Legitimate targets? Social construction, international law, and US bombing 132 Nuno P. Monteiro Theory of unipolar politics 131 Jonathan D. Caverley Democratic militarism Voting, wealth, and war 130 David Jason Karp Responsibility for human rights Transnational corporations in imperfect states 129 Friedrich Kratochwil The status of law in world society Meditations on the role and rule of law 128 Michael G. Findley, Daniel L. Nielson and J. C. Sharman Global shell games Experiments in transnational relations, crime, and terrorism 127 Jordan Branch The cartographic state Maps, territory, and the origins of sovereignty 126 Thomas Risse, Stephen C. Ropp and Kathryn Sikkink (eds.) The persistent power of human rights From commitment to compliance 125 K. M. Fierke Political self-sacrifice Agency, body and emotion in international relations 124 Stefano Guzzini The return of geopolitics in Europe? Social mechanisms and foreign policy identity crises 123 Bear F. Braumoeller The great powers and the international system Systemic theory in empirical perspective 122 Jonathan Joseph The social in the global Social theory, governmentality and global politics 121 Brian C. Rathbun Trust in international cooperation International security institutions, domestic multilateralism

politics

and

American

120 A. Maurits van der Veen Ideas, interests and foreign aid 119 Emanuel Adler and Vincent Pouliot (eds.) International practices 118 Ayşe Zarakol After defeat How the East learned to live with the West 117 Andrew Phillips War, religion and empire The transformation of international orders 116 Joshua Busby Moral movements and foreign policy 115 Séverine Autesserre The trouble with the Congo Local violence and the failure of international peacebuilding 114 Deborah D. Avant, Martha Finnemore and Susan K. Sell (eds.) Who governs the globe? 113 Vincent Pouliot International security in practice The politics of NATO-Russia diplomacy 112 Columba Peoples Justifying ballistic missile defence Technology, security and culture 111 Paul Sharp Diplomatic theory of international relations 110 John A. Vasquez The war puzzle revisited 109 Rodney Bruce Hall Central banking as global governance Constructing financial credibility 108 Milja Kurki Causation in international relations Reclaiming causal analysis 107 Richard M. Price Moral limit and possibility in world politics 106 Emma Haddad The refugee in international society Between sovereigns

105 Ken Booth Theory of world security 104 Benjamin Miller States, nations and the great powers The sources of regional war and peace 103 Beate Jahn (ed.) Classical theory in international relations 102 Andrew Linklater and Hidemi Suganami The English School of international relations A contemporary reassessment 101 Colin Wight Agents, structures and international relations Politics as ontology 100 Michael C. Williams The realist tradition and the limits of international relations 99 Ivan Arreguín-Toft How the weak win wars A theory of asymmetric conflict 98 Michael Barnett and Raymond Duvall (eds.) Power in global governance 97 Yale H. Ferguson and Richard W. Mansbach Remapping global politics History’s revenge and future shock 96 Christian Reus-Smit (ed.) The politics of international law 95 Barry Buzan From international to world society? English School theory and the social structure of globalisation 94 K. J. Holsti Taming the sovereigns Institutional change in international politics 93 Bruce Cronin Institutions for the common good International protection regimes in international security 92 Paul Keal European conquest and the rights of indigenous peoples The moral backwardness of international society 91 Barry Buzan and Ole Wæver Regions and powers The structure of international security

90 A. Claire Cutler Private power and global authority Transnational merchant law in the global political economy 89 Patrick M. Morgan Deterrence now 88 Susan Sell Private power, public law The globalization of intellectual property rights 87 Nina Tannenwald The nuclear taboo The United States and the non-use of nuclear weapons since 1945 86 Linda Weiss States in the global economy Bringing domestic institutions back in 85 Rodney Bruce Hall and Thomas J. Biersteker (eds.) The emergence of private authority in global governance 84 Heather Rae State identities and the homogenisation of peoples 83 Maja Zehfuss Constructivism in international relations The politics of reality 82 Paul K. Ruth and Todd Allee The democratic peace and territorial conflict in the twentieth century 81 Neta C. Crawford Argument and change in world politics Ethics, decolonization and humanitarian intervention 80 Douglas Lemke Regions of war and peace 79 Richard Shapcott Justice, community and dialogue in international relations 78 Phil Steinberg The social construction of the ocean 77 Christine Sylvester Feminist international relations An unfinished journey 76 Kenneth A. Schultz Democracy and coercive diplomacy

75 David Houghton US foreign policy and the Iran hostage crisis 74 Cecilia Albin Justice and fairness in international negotiation 73 Martin Shaw Theory of the global state Globality as an unfinished revolution 72 Frank C. Zagare and D. Marc Kilgour Perfect deterrence 71 Robert O’Brien, Anne Marie Goetz, Jan Aart Scholte and Marc Williams Contesting global governance Multilateral economic institutions and global social movements 70 Roland Bleiker Popular dissent, human agency and global politics 69 Bill McSweeney Security, identity and interests A sociology of international relations 68 Molly Cochran Normative theory in international relations A pragmatic approach 67 Alexander Wendt Social theory of international politics 66 Thomas Risse, Stephen C. Ropp and Kathryn Sikkink (eds.) The power of human rights International norms and domestic change 65 Daniel W. Drezner The sanctions paradox Economic statecraft and international relations 64 Viva Ona Bartkus The dynamic of secession 63 John A. Vasquez The power of power politics From classical realism to neotraditionalism 62 Emanuel Adler and Michael Barnett (eds.) Security communities 61 Charles Jones E. H. Carr and international relations A duty to lie

60 Jeffrey W. Knopf Domestic society and international cooperation The impact of protest on US arms control policy 59 Nicholas Greenwood Onuf The republican legacy in international thought 58 Daniel S. Geller and J. David Singer Nations at war A scientific study of international conflict 57 Randall D. Germain The international organization of credit States and global finance in the world economy 56 N. Piers Ludlow Dealing with Britain The Six and the first UK application to the EEC 55 Andreas Hasenclever, Peter Mayer and Volker Rittberger Theories of international regimes 54 Miranda A. Schreurs and Elizabeth C. Economy (eds.) The internationalization of environmental protection 53 James N. Rosenau Along the domestic-foreign frontier Exploring governance in a turbulent world 52 John M. Hobson The wealth of states A comparative sociology of international economic and political change 51 Kalevi J. Holsti The state, war, and the state of war 50 Christopher Clapham Africa and the international system The politics of state survival 49 Susan Strange The retreat of the state The diffusion of power in the world economy 48 William I. Robinson Promoting polyarchy Globalization, US intervention, and hegemony 47 Roger Spegele Political realism in international theory 46 Thomas J. Biersteker and Cynthia Weber (eds.) State sovereignty as social construct

45 Mervyn Frost Ethics in international relations A constitutive theory 44 Mark W. Zacher with Brent A. Sutton Governing global networks International regimes for transportation and communications 43 Mark Neufeld The restructuring of international relations theory 42 Thomas Risse-Kappen (ed.) Bringing transnational relations back in Non-state actors, domestic structures and international institutions 41 Hayward R. Alker Rediscoveries and reformulations Humanistic methodologies for international studies 40 Robert W. Cox with Timothy J. Sinclair Approaches to world order 39 Jens Bartelson A genealogy of sovereignty 38 Mark Rupert Producing hegemony The politics of mass production and American global power 37 Cynthia Weber Simulating sovereignty Intervention, the state and symbolic exchange 36 Gary Goertz Contexts of international politics 35 James L. Richardson Crisis diplomacy The Great Powers since the mid-nineteenth century 34 Bradley S. Klein Strategic studies and world order The global politics of deterrence 33 T. V. Paul Asymmetric conflicts War initiation by weaker powers 32 Christine Sylvester Feminist theory and international relations in a postmodern era 31 Peter J. Schraeder US foreign policy toward Africa Incrementalism, crisis and change

30 Graham Spinardi From Polaris to Trident The development of US Fleet Ballistic Missile technology 29 David A. Welch Justice and the genesis of war 28 Russell J. Leng Interstate crisis behavior, 1816-1980 Realism versus reciprocity 27 John A. Vasquez The war puzzle 26 Stephen Gill (ed.) Gramsci, historical materialism and international relations 25 Mike Bowker and Robin Brown (eds.) From cold war to collapse Theory and world politics in the 1980s 24 R. B. J. Walker Inside/outside International relations as political theory 23 Edward Reiss The strategic defense initiative 22 Keith Krause Arms and the state Patterns of military production and trade 21 Roger Buckley US-Japan alliance diplomacy 1945-1990 20 James N. Rosenau and Ernst-Otto Czempiel (eds.) Governance without government Order and change in world politics 19 Michael Nicholson Rationality and the analysis of international conflict 18 John Stopford and Susan Strange Rival states, rival firms Competition for world market shares 17 Terry Nardin and David R. Mapel (eds.) Traditions of international ethics 16 Charles F. Doran Systems in crisis New imperatives of high politics at century’s end

15 Deon Geldenhuys Isolated states A comparative analysis 14 Kalevi J. Holsti Peace and war Armed conflicts and international order 1648-1989 13 Saki Dockrill Britain’s policy for West German rearmament 1950–1955 12 Robert H. Jackson Quasi-states Sovereignty, international relations and the third world 11 James Barber and John Barratt South Africa’s foreign policy The search for status and security 1945–1988 10 James Mayall Nationalism and international society 9 William Bloom Personal identity, national identity and international relations 8 Zeev Maoz National choices and international processes 7 Ian Clark The hierarchy of states Reform and resistance in the international order 6 Hidemi Suganami The domestic analogy and world order proposals 5 Stephen Gill American hegemony and the Trilateral Commission 4 Michael C. Pugh The ANZUS crisis, nuclear visiting and deterrence 3 Michael Nicholson Formal theories in international relations 2 Friedrich V. Kratochwil Rules, norms, and decisions On the conditions of practical and legal reasoning in international relations and domestic affairs 1 Myles L. C. Robertson Soviet policy towards Japan An analysis of trends in the 1970s and 1980s