Targeting the Sleeping Soldier

Targeting the Sleeping Soldier

Whitley Kaufman

Why is it morally permissible to harm or kill soldiers in wartime? There could hardly be a more fundamental question for Just War Doctrine, yet strangely we lack a satisfactory answer to this question. Notice that this issue is prior even to the much-discussed question of the justification for the inevitable harm to “innocent civilians.” Indeed, the usual approach is to assume that it is permissible to kill soldiers, and then to focus on the derivative question of why and when it is permissible to cause collateral harm those not actively engaged in the conflict. Yet it is far from obvious why it should be morally unproblematic to attack even armed soldiers, given the overwhelming moral presumption that harming or killing others is forbidden. And we cannot hope to address the question of harm to civilians until we have a firm idea of why it is permissible to harm soldiers.

One answer to this question, from the doctrine known as Realism, holds that war is intrinsically extra-moral, beyond the constraints of law and morality. War is a return to the state of nature, and so anything goes in the name of victory. Practices that would not be tolerated in peacetime society (blowing up buildings, killing people, mining harbors) are morally wrong but necessary under the extreme circumstances of warfare. In fact Realism has never been very realistic, for it ignores the fact that soldiers have always recognized (if not always obeyed) moral constraints in war, the most important of which is the Discrimination principle requiring that one target only soldiers and not civilians. Indeed, some realists have argued that, since all acts of violence in war are immoral, then there is nothing especially wrong with deliberately targeting civilians. Thus Sir Arthur Harris, head of the RAF bomber command, defending the bombing of cities in World War II:

Tell me one operation of war which is moral...Sticking a bayonet into a man’s belly, is that moral? Then they say, well of course strategic bombing involved civilians. Civilians are always involved in major wars. After all, previous wars ended up in the besieging of major cities, and in besieging a city what was the idea? To cut off all supplies...and meanwhile the besieging forces lobbed every missile they could lay their hands on into the city, more or less regardless of where those missiles landed, as an added incentive to surrender.[1]

Of course, Realism is antithetical to the Just War Tradition, under which wars are permissible only when they are justified, both legally and morally. We thus need an account of killing in war that is consistent with moral theory. In this tradition, there are essentially two competing attempted justifications. First is what I will call the Punishment Account: in this theory, one may not harm or kill the innocent; only the guilty may be deliberately harmed (as as the case in punishment). On this view, one may kill enemy soldiers because they are wrongdoers, and as a corollary, one may not harm civilians because they are innocent. The Punishment Account has a long and venerable ancestry in the Just War tradition, and is still influential even today. However, it suffers from serious problems. For one thing, it appears to be blatantly inconsistent with the principle of the moral equality of soldiers, according to which soldiers are taken to be justified on both sides of a war. Further, the assertion that soldiers as a class are guilty while civilians as a class are innocent is obviously problematic. An unwilling conscript is hardly more guilty than an enthusiastic civilian supporter of the war who exhort him to fight. Moreover, if it is justified to kill an enemy soldier because he deserves it on account of his guilt, this rationale would seem to permit, indeed require, that prisoners of war be executed, and that all enemy soldiers after the war is won also be executed. If they are guilty while they are fighting, they are no less guilty for having been captured or defeated – indeed, punishment typically takes place after the offense, not during it. Obviously, the Punishment account does not jibe with our practices.

As an alternative, modern Just War doctrine has largely settled on what I will call the Self-Defense Account: that all use of violence in war is justified by the principle of self-defense. This version has become so widely accepted that it could also be called the Standard Account. It begins with the notion that the principle of self-defense gives us an uncontroversial and morally legitimate grounds for the use of force. On this view, violence in war is consistent with principles of peacetime: one may use violence to protect oneself against an attack. Moreover, this account appears to give us as well a rationale for the Discrimination principle: that armed soldiers are legitimate targets because they are attackers, whereas unarmed civilians may not be targeted because they are not themselves posing a threat of harm. Further, once an enemy soldier is captured, or the war is over, then the soldier no longer pose a threat, and so may not be harmed in self-defense. The Self-Defense Account appears to solve the moral problem and avoid recourse to Realism, and for this reason has become almost universally accepted today.

Note that in our tradition the term “self-defense” has come to be a generic term covering all possible uses of defensive force, whether in defense of self, other, or property. Thus we can immediately fend off one possible objection to the Standard Account, that much or even most of the violence in war is not done in personal self-defense. For self-defense covers both personal self-defense (the soldier defending himself), unit defense (the soldier defending his fellow soldiers), and most important of all, the overarching defensive justification for the war itself: defense of whatever values the war is being fought for. That is, the resort to any violence at all must be justified in that the war itself is justified as a defense of some legitimate value. These values might include defense of one’s country against aggression, or defense of a people against genocide or tyranny. Thus we can reject the criticism of the Standard Account that self-defense is too narrow a ground to justify most violence in war.[2] Even if the soldier using force is not himself under a threat of attack, his use of force may be justified on grounds that he is defending others from a threat, or more generally attempting to right a prior wrong.

Another great attraction of the Standard Account is that it allows us to sidestep the controversial question of guilt versus innocence in wartime, the problem on which the Punishment Account founders. The Standard Account can avoid this problem, because guilt or innocence has never been part of the self-defense justification for killing. In standard self-defense doctrine, one may use force against an unjustified attacker, whether he is legally or morally guilty or innocent. For example, consider the mistaken aggressor who thinks you are a robber and fires a weapon at you: you are permitted to use defensive force against him despite his being innocent of any wrongdoing, legal or moral. Thus in wartime, what matters morally is merely the fact of an attack, not the guilt or innocence of the soldier. The soldier is an attacker and hence may be targeted; the civilian, whatever his mental state, is not an attacker and hence has immunity in war. Thus we need not even address the question of who is guilty or innocent in wartime (though that is a relevant matter post bellum).

Despite all the apparent advantages of the Standard Account, it has indeed been subject to powerful criticisms. The standard principles governing self-defense require that four conditions be fulfilled before force is justified. First, force may only be used against an Unjustified Aggressor. Second, the force used must be necessary. Third, the force used must be proportionate to the harm being avoided. And fourth, the threat must be imminent. Every one of these rules has been used to criticize the Standard Account. Given the doctrine of the “Moral Equality of Soldiers”, for example, can we consider enemy soldiers to be unjust aggressors? And is all force used in war genuinely necessary and proportionate? All of these criticisms can be answered, I believe, but my focus will be on the criticism that is most compelling: can the use of force in war be justified as a response to an imminent threat?

The imminence restriction in domestic criminal law requires that the harm be immediate, about to happen. A threat of possible harm tomorrow or next week or next month does not qualify as imminent. The idea of self-defense law is that one may not resort to force until the very last possible moment; preemptive or anticipatory use of force is ruled out. Notoriously, in recent years this rule has been used against women who kill their husbands, claiming it is a preventive measure because of a history of repeated beatings they have suffered in the past. In the most extreme cases, some women have killed their husbands while they slept or were unconscious. The issue is extremely controversial, but the general tendency has been to hold that such use of force is illegal, since an unconscious person cannot as a matter of definition pose an imminent threat. But even in cases where the husband was fully conscious, the imminence rule has been used against women who kill while the husband was unarmed or not presently engaged in an attack or even a threatened attack. The expectation of an attack later does not justify the use of force now; one must wait until one has no choice but to resort to force.

But suppose we apply this interpretation of the imminence rule to killing in wartime. The problem is quickly apparent: only a small portion of the use of force in war would qualify under such a strict restriction. A direct confrontation with the enemy: a firefight, an ambush, a pitched battle would satisfy the imminence rule. But as David Rodin points out in his critique of the Self-Defense Account, soldiers “are permitted to use violence against persons who pose no imminent threat to anyone. For instance, they may kill enemy soldiers who are marching, eating, sleeping, and so on, as well as uniformed support staff such as lorry drivers, cooks, and administrators.”[3] Perhaps the clearest example of the problem, and the one on which we will focus here, is the sleeping soldier. Few would consider it illegitimate to target soldiers when they are in their camp or barracks and not presently attacking, and even when most of them are sleeping. Yet we have already said that the sleeping husband may not legitimately be attacked. But there are numerous other equally clear examples of non-imminent threats. Larry May for example uses the example of the naked soldier taking a bath, as told in Robert Graves’ memoir Goodbye to All That.[4] Graves spots a naked soldier taking a bath and refuses to shoot him, but gives his sniper rifle to another soldier to carry out the task. Whatever Graves’ moral misgivings (reminiscent of George Orwell’s failure to shoot a soldier whose pants were falling down), the issue for us is why would it be permissible to shoot such a soldier, who obviously poses no immediate threat to anyone.

This appears to leave us with a dilemma: either one cannot target enemy soldiers except when they are actually brandishing weapons and advancing, or else the Standard Account is wrong. We certainly do want to say that once an enemy soldier surrenders and lays down his weapon, or is otherwise rendered hors de combat, he no longer poses a threat and hence may not be targeted. However, most killing in war would not seem to satisfy the strict imminence standard: shelling soldiers in their camp, shooting at fleeing soldiers; and this is not even to mention the use of strategic bombing against munitions factories and other such targets. Are we forced then back into the Realist position? Is killing in war not morally justified after all?

One strategy is to insist, as does Major Peter Kilner, that “soldiers do face an imminent threat from the enemy.”[5] But this assertion simply obfuscates the question rather than clarifies it. Clearly, soldiers do face imminent threats in war. But if it is meant to imply that all threats in war are imminent, or that all use of force in war is against an imminent threat, it is obviously false. A second possibility is to “redefine” or reinterpret the imminence rule so as to make it more flexible (this approach is seen mostly in the debate over jus ad bellum, where the imminence issue also arises; both John Yoo and Michael Walzer have suggested such a strategy). But this seems to be a transparent attempt to evade the imminence rule while pretending to comply with it.

A third possibility is to loosen the imminence standard, on the grounds that the “conditions of war are different” from those of civil society, as Jeff McMahan suggests.[6] McMahan argues that war “involves threats that consist of activities organized in phases over extended periods of time,” and that thus preventive defense would be justified. Thus the sleeping soldier is a legitimate target: “a soldier sleeping in invaded territory has already attacked and is engaged in attacking in the same way that I am engaged in writing this essay even while I pause to make a cup of tea” (id.). The problem with this explanation is that it misleadingly treats the imminence rule as if it were a sliding standard, to be flexibly applied depending on the nature of the attack. But this is simply not true as regards civil society, as is most obviously demonstrated in the battered women cases. Even if the woman is subject to repeated attacks over extended periods, that does not permit her to evade the imminence rule. If her husband is asleep, he cannot pose an imminent threat as a matter of law.

We appear to be left in a dilemma then: the Self-Defense account is the only plausible justification for killing in war, and yet it would prove overly restrictive when applied to warfare. I would like to suggest that there is a way out of this dilemma: we can hold onto the Self-Defense justification, but without having to twist the imminence rule beyond recognition. My suggestion is that the imminence rule simply does not apply to wartime in the first place: it is a restriction that is specific to the domestic context. That is, we must distinguish the universal rules of self-defense: unjust attacker, proportionality, and necessity, all of which apply to any use of defensive force, domestic or international, from the imminence rule, which applies solely to the domestic context.

The argument for this claim is based on both moral philosophy and history; I develop it in detail in an article forthcoming in New Criminal Law Review (Summer 2007), but will present the gist of it here. The imminence rule, I claim, is not a general moral restriction on the use of force. There is no moral principle that requires that one wait until the moment of imminence to defend oneself from an attack. If someone is wrongly planning to kill me, I am entitled to defend myself as necessary, even if it means acting preventively. To be sure, the longer I wait, the more I can be certain that defensive force is truly necessary. But morality does not in general require us to exercise saintly forbearance. The longer I wait, after all, the more I put myself in jeopardy, for it may quickly become too late to act to protect myself.

But why then does self-defense require that the threat be imminent, at least in the domestic context? The answer, I claim, is that this reflects a political rather than a moral restriction; it reflects a particular allocation of the authority to use force as between the state and the individual. Essential to the state is its monopoly on the use of force; it alone is authorized to inflict violence (through the power of arrest and punishment). When an individual feels threatened, he may not resort to violent self-help but must call on the state to protect him. But the one significant exception to this monopoly is the individual right of self-defense where there is an imminent threat. The reason for this exception is obvious: when the threat is imminent, there is no time or opportunity for the individual to call on the state to protect himself; it is either resort to self-help, or submit to the violent assault. As the state cannot reasonably require individuals to submit to being killed, it grants an exception allowing the use of deadly force, but only when the state is unable to protect the individual in time.

The situation in war is patently different from the domestic one, however. As Kilner recognizes, “soldiers have no recourse to a higher authority to defend them” (id. p. 31). More precisely, what Kilner should have said is that soldiers are the higher authority, the representatives of the state, on the battlefield. As such, they are not governed by the imminence restriction, which applies only to private violence not state violence. Indeed, on the battlefield it is arguable that the imminence rule does not even apply to private violence, as there is no effective monopoly of force in war. Thus a soldier or a unit can perhaps in some cases act in private self-defense free of the imminence rule. But in any case, acting in his capacity as a soldier he is clearly not bound by the restriction that the threat be imminent. It is thus morally and legally permissible to target even a sleeping soldier, for while that soldier does not constitute an imminent threat, he will likely be a threat tomorrow or the next day.

This argument should not be taken as suggesting that violence in war is essentially unlimited. The unjust attacker, proportionality, and necessity rules apply every bit as strictly in wartime as in peace. Necessity in particular is a crucial restriction on the resort to violence: if one can capture the sleeping soldier rather than kill him, one is morally obligated to do so (assuming it does not result in undue risk to the soldiers trying to capture him). One is of course morally obligated to disarm or disable rather than kill where reasonably possible as well. Indeed, the further a threat is from being imminent, the less likely it will be necessary to use force now, for there may well be alternative means of preventing the threat. Nonetheless, in some cases it will be necessary to use force even against sleeping soldiers. Neither law nor morality require that force be limited to imminent threats in wartime.

This account of the imminence rule that I am defending is nonstandard and controversial; most commentators interpret imminence as an intrinsic element of self-defense rather than as a particular restriction on domestic self-defense law. However, if I am correct, it offers a way of preserving the Self-Defense Account of killing in war, consistent with basic principles of self-defense. We can then avoid the problematic task of defending wartime force on the grounds of guilt or innocence, and also fend off the Realists who claim that military force is simply beyond moral or legal justification. There is no more fundamental moral issue in Just War doctrine than this one: on what grounds may a soldier use force against enemy soldiers. It is, I claim, the principle of self-defense that licenses such a use of force.

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