Morality in the conduct of war

Morality and the Conduct of War

The early Christian Church had no state and no armies and no tradition of militancy – quite the opposite. Like its founder (in most of his words and deeds) it was largely pacifist in its attitude to conflict. That all had to change when Christianity, courtesy of the Emperor Constantine, became the state religion of a decidedly militaristic state – Rome. Military victories were attributed to divine assistance, with the clear implication that war and Christianity were perfectly compatible.

So theologians (for example, St Aquinas and St Augustine) formulated new doctrines concerning violence and war. One was the theory of Double Effect (a necessary but nasty consequence of a permissible or obligatory action is morally/religiously okay if not intended as a goal of the agent – so killing someone in self defence is permissible, if killing is the only way to secure self-preservation). Another doctrine (developed from certain Classical traditions) was the theory of “Just War”.

The two important components of Just War theory are (using the Latin tags which have endured down the centuries) are Jus ad Bellum (having a morally defensible justification to wage war as a last resort, such as defence against aggression, or to stop a genocide) and Jus in Bello (behaving proportionately in the conduct of war, for example not killing more of the enemy than is “necessary” and respecting the immunity of civilians and prisoners).

Given that wars happen, and that Jus ad Bellum is not always conspicuously present for all or any of the belligerents, much moral thinking and the focus of international law has been concerned with the conduct of wars – Jus in Bello.

There is an article in the 2015 alumni magazine of the Oxford University Politics Department (Inspires – available at politics.ox.ac.uk/alumni), in which lecturer Janina Dill succinctly examines a tension between the law of war (derived from Jus in Bello theory) the morality which commonly applies to violence. (The article, like this blog, is not an original piece of analysis. Jeff  McMahan, the newly appointed Professor of Moral Philosophy at Oxford is the most articulate exponent of the school of thought summarised.)

In short, the legal rules derived from Just War theory are predicated on the “equality” of combatants, regardless of whether their cause is just or unjust. Thus, combatants on all sides are, as it were, licensed to kill one another (proportionately of course) without legal and, perhaps, moral penalty. So, provided he observed the other relevant requirements of Jus in Bello, a soldier in the Wehrmacht, at the service of Hitler’s genocidal aggression, is/was permitted to machine-gun to death armed allied attackers on the Normandy beaches in 1944. The latter soldiers (or their representatives) could have no moral or legal complaints about the lethal force directed at them, because they were also combatants with lethal force at their disposal, and would have directed it at the German.

This is at odds with most moral thinking about violence outside the context of war. In “ordinary” life, there is moral asymmetry between an attacker who has no just cause for his attack and his victim. Thus, a murderous rapist may be repulseded by his victim, lethally if necessary, and, many would say, the attacker has no moral right to resist the repulse just as he has no right to initiate his attack.

Applying such thinking in the context of warfare yields the conclusion that the Wehrmacht soldier in Normandy, in service to an unjust cause, had no moral right to defend against the allied invasion.

Further, as Dill points out, the law of war/Jus in Bello theory ignores the material difference in status between combatants who are willing,  those who are conscripted, those who are knowing and those who are ignorant, all of which are morally relevant. Also the fiction of a sort of isolated military chessboard on which combatants manoeuvre on equal terms, whilst non-combatants are immune, ignores the complicity or ultimate responsibility some civilians share for the fact that war has erupted, or the way in which it is conducted.

(Dill’s article is intriguingly entitled The Janus-faced Nature of War and International Law. By this she means that, sometimes, in order to preserve uneasy international order and promote peace, or the stilling of conflict, “well-meaning” states go to war, and such “just” warfare necessarily threatens order,  peace and, of course, lives.)

The short answer to the tension between personal morality and what happens in war is that for Jus in Bello theory and international law to follow common morality would be wholly unrealistic. It would not work, not least because both sides to a war, or enough of their combatants, would claim justification for their violence. Of its nature, warfare does not stop for nuanced judgments.

Therefore one has to acknowledge a disconnect between normal morality and the rules which attempt to govern conduct in war. Some would go further and say that warfare between states is not governed by any code at all – states inhabit a Hobbesian world of “war of all against war”. On this view, states’ leaders, political and military, should employ any means necessary to victory. Inter arma silent leges – in conflict, rules fall silent. Many wars have been conducted this way, including modern ones and even by just states. But most states try to conduct themselves by some sort of norms at least some of the time; and to some extent pay heed to international law and Just War standards when in military conflict. 

It is better that there should be conventions imposing constraints on the conduct of war than that there be no constraints, even if the constraints are often broken.  In order for the constraints to have any general purchase, it appears that the equality of combatants, just or unjust, has to continue to be a feature of international law. Tough on the scared draftee.

As a postscript: it is a conventional assumption in morality that an unjust attacker loses his moral right to self-defence against just resistance to his attack. For example, a gunman attempting a murder who is confronted by an armed policeman about to shoot him to prevent the murder has no right to fire at the policeman; and the same goes in principle for the German soldier defending the Atlantic Wall.

This is too neat. Hobbes thought that no-one ever gives up their right to life – even the rightly condemned criminal retains a right to resist execution. Hobbes saws this as a kind of  moral right. But it might be better viewed as pre-moral prudential right. A wrongdoer just will try to preserve his or her life, whatever the justice of the matter. Conversely an innocent victim’s self-defence against a lethal threat is not really so much about asserting a moral right to live against the unjust attacker as about asserting a fundamental wish to live. So one defends oneself from a lethal attack in the same state of mind, whether one’s attacker is a person beyond persuasion or an animal out of control.

July 2015