The moral equality of combatants

The Moral (In)equality of Combatants

Colonel Daniel Zupan

US Military Academy at West Point

I have started and restarted this paper it seems like a million times. The Moral Equality of Combatants (MEC) is a just war principle whose legitimacy I have assumed probably since I began thinking about jwt many years ago. Now I am not so confident of its plausibility, much less its legitimacy. Nonetheless, after considering the issue from many sides, and considering the very powerful arguments of those theorists who question MEC, I still feel there is something to say in favor of MEC and that the jus in bello/jus ad bellum distinction provides some reason to believe that combatants on any side of a war are moral equals (provided they fight in accordance with the laws of war, a notion that itself requires clarification but is not the focus of this paper). So I want to discuss a couple ideas, ways of looking at MEC, that make its legitimacy seem plausible.

A few preliminary remarks. I am going to address my arguments to combatants as a class; my goal is simply to establish the general viability of MEC, in principle. On the other hand, I do not want to ignore the obvious differences between different types of soldiers within the class. For instance, a general officer on the Joint Staff might be guilty of wrongdoing, even if we judge that the combatant on the ground who is actually doing the killing is not (guilty). We must, that is, recognize the gross difference in power, knowledge, access to information, influence, and freedom that obtains among people in a hierarchical chain of command. The lower one is in the chain, the less influence, etc,, one has, and the less one can be held responsible for the wars one is fighting.

Proper Authority (PA). I have been thinking about this just war principle in terms of social contract theory. PA is neither a necessary nor sufficient condition for just war. Some theorists deny its relevance in general. But this principle captures something about nature of war as an inherently collective venture. I want to develop this theme to see what it can tell us about the distinction, if any, between collective and individual responsibility. At least in our modern era, if PA has any justificatory power, that power can't derive from notion that state action is above the law or cannot be judged in moral terms. On that understanding, any war would be just as long as it was declared by a proper authority, usually thought of in terms of a sovereign state. But the dominant idea in our era, of course, is that there are just and unjust wars and that states that start unjust war are morally and legally guilty of a grave wrongdoing. But there is another implication of PA that, when viewed from the perspective of a certain conception of social contract theory, bears directly on the issue of MEC. If PA has any meaningful role to play in JWT, at least part of that role would be to rule out so-called private wars, the sorts of acts of violence we typically associate with terrorists or international assassins. Some might contend that private wars are not eo ipso unjust, that there are cases where individual aggression against a particular state would be just. For instance, would anyone condemn a group of citizens who organized a mercenary group for the purpose of stopping the genocide in Rwanda? Since no state actor responded appropriately, a private citizen would have been, it seems, eminently justified in acting to stop the brutality. But if it would be justified, it would only be because Rwanda itself had deteriorated to a "state of nature." It would be difficult to argue that a legitimate country actually existed; so the mercenaries would be protecting the innocent in the absence of any proper or legitimate authority. I will not explore these issues further, but I wanted to note that I see the difficulty.

So let me return to the social contract. In order for there to be anything like a community of nations, there must first be nations.[1] And even the most minimalist conception of what a nation is includes the idea that members of a community vest certain powers in a government of some sort. One of the most important functions of any government is to wield force on behalf of its members. Private vengeance and retribution are ruled out, generally. In social contract terms, individuals give up certain rights that they had in the notional state of nature in exchange for the security obtained from accepting common laws that are enforced by the sovereign. Anyone who does not consent to the rule of law remains in the state of nature with respect to everyone else. They are, as Locke says, like wild animals with whom no compromise or commerce is possible.

I am obviously leaving aside many details about what constitutes a community of nations or an individual nation. But there clearly are nations and such a community, and to the extent that we do condemn terrorists and others who reject any state apparatus to resolve disputes, we seem to be committed to some recognition of a very real distinction between the morality of communal action and that of individual acts, between collective responsibility and individual responsibility. Part of what I'll call the logic of communities is to be under communal laws, to consent to the rule of law, and reject individual acts of retribution and all the arbitrariness, fallibility, and injustice that are pervasive and dangerous features of the "law of the jungle." As such, there is an inconsistency if we ignore this moral feature of communal activity, which differentiates it from individual action in terms of moral responsibility. The individual gives over certain rights and responsibilities to some government, or representative, and it is considered legally and often morally impermissible for individuals to take into their hands matters that are the purview of the state.[2] It is as if we demand of the individual that she refrain from certain activities (private wars) and cede that authority and responsibility to the state, but at the same time we reserve the right to condemn her for fulfilling the terms of the contract: she is to be in the state of nature and out of the state of nature at the same time.

A similar dynamic is at work with MEC. The state makes the decision as to when and how to use force to protect the commonwealth. So we have a curious phenomenon if we deny MEC because on one hand, we deny the individual the right to resort to violence, that is, we rule out the permissibility of private wars in the same way that nations deny their citizens the right to seek extra-judicial retribution. Defense of the commonwealth, the resort to violence, is a right/responsibility reserved for the state, the governing apparatus of the collective. We recognize the state, in whatever form it is, as the embodiment of the people, or at least the people's representative in the community of nations. And insofar as we acknowledge the existence of a community of nations, we must also acknowledge what it means for a nation to be a member of this community. An important part of what this means is that this nation is led by and represented by an individual or body that acts on behalf of its people. These representatives may be benevolent or despotic, efficient or corrupt, but their decisions direct communal action.

But when we deny the MEC, we seem to be in tension with this representative feature of states, at least as it is understood in the present era. In essence, we require as a minimal condition for a people to be recognized as a political entity, a nation, that they transfer the right to use force to some institution higher than the individual. This institution acts in some way as the voice of this political community in the important discourse of states. At the same time, however, if we deny MEC, we adopt the position that we will condemn the individual members of the collective if they obey the institution's laws, their own laws. I don't claim that MEC follows directly from this feature of collective action, but it does point to a difficulty in viewing collective defense as merely an extension of individual/self-defense.

If this is not logically inconsistent, it is at least a double standard. Consistency may demand that if we require individuals to act only under the aegis of the state, in the appropriate circumstance -- say, enforcing domestic law or using violence against anther country -- that we not condemn them when they in fact comply with the requirement. But this could not count as a blanket justification since PA is a restrictive principle in its most typical application. By that I mean, its primary force is to deny to individuals the right to fight private wars. It does not therefore automatically sanction just anything the individual does as long as he does it under the aegis of the state. But I want to argue that a soldier's predicament is such that MEC should be our presumption. Otherwise we are in effect asserting that jus ad bellum is the business of the state, solely, and that it isn't the business of the state, solely.

Perhaps the MEC derives from the very logic of community. If it's the case that communal action is very different than individual action, and I feel it is, then we should recognize that there are circumstances under which it would be unjust to judge an individual member of a community, acting on behalf of or on the orders of that community, as if she were not acting as a member of a community, that is, in the same way we'd judge her if she acted solely on her own behalf. Going to war on the orders of one's government would be one of those circumstances. I reiterate: it would be unjust, not merely unreasonable or inordinately self-righteous. Of course, there are cases where, even if ordered by one's government to do such and such, one would not be exonerated, e.g., the SS fighting for Hitler's Germany. In such cases, the issue turns on epistemic concerns. That is, up till now, I have been arguing for a conceptual justification for MEC, that MEC follows from the nature of communal activity. But what about those cases where the soldier really does know his country is involved in an unjust war? Stated this way, it would be difficult to justify his participation. If he actually knew what anyone could know from some sort of objective or God's-eye view, namely, that his side was unjust, could he justifiably go to war, knowing that he'd be complicitous in what would amount to mass murder? Probably not. But this way of describing the situation begs the question in some way since it presumes a sort of knowledge which is typically unavailable to the soldier. Even Walzer, an ardent advocate of MEC, would condemn a soldier who possessed this sort of knowledge if the soldier nonetheless fought. That's one of the principle reason he differentiates between generals and the common soldier, i.e., the general is in a position to know. So now I turn to the notion of the combatant's so-called invincible ignorance.

Some theorists contend that "the morality of self-defense in war is continuous with the morality of individual self-defense." Perhaps. But consider this. Suppose I am assaulted on the street, that someone is unjustly attacking me. Since I am the victim, I know that my assailant is unjust. The soldier, fighting at the direction of his government, lacks that sort of certainty about the justice or injustice of his enemy's cause. He relies on his government, on a very complex system, etc. We could make a fairly strong case for his ignorance. But many who deny MEC would probably grant this, would accept the idea that the soldier truly is ignorant and his ignorance would mitigate his guilt -- and would only mitigate it; he'd still be an unjust combatant. More strongly, however, theorists who deny MEC as a sort of norm contend that soldiers rarely are in such a position of ignorance.

But we must be careful not to underestimate how difficult it is for a combatant properly to consider and know the moral status of his country's wars. Consider the debate about the current Iraq war. Many well-intentioned, intelligent people disagree about its moral status. How can we hold combatants responsible for "knowing" the justice of their cause when those with time and formal training, etc., can't agree? I know that we can't appropriately generalize from the case of this war to all wars, or even most wars. On the other hand, it is plausible to say that MEC has emerged as a just war standard precisely because the ignorance of combatants is such a common feature of their experience, even in wars that, from an objective point of view, are much less controversial. Being under orders, trusting in his superiors, focusing on the mission at hand are such a part of the ordinary experience of being a soldier that "knowing" his war to be unjust turns out to be something he literally cannot do. That is, even if we acknowledged that soldiers commit an injustice if they go to war despite knowing that their country is fighting an unjust war, we might, in all fairness, have to admit that they really can't have such knowledge. In practice, their actual ability to know in the relevant sense is so constrained, requires such a paradigm shift in their personal world view that, in theory, MEC is the only reasonable position to adopt.

Consider the case of a police officer enforcing domestic law. There have been, are, and will be many unjust laws. But we do not hold the police officer morally or legally culpable for upholding them; at least, that is typically not our default position. The police officer must trust the system of which he is a part; we do not vilify him for enforcing the laws. For instance, the legal age in the U.S. for drinking alcohol is 18. This is probably, almost assuredly, an unjust law. But we don't judge the police officers as unjust for enforcing this law. And this has to do, I believe, with the police officer's role in the community. The police are in a situation similar to that of soldiers; their world view, their common experience, produces significant obstacles to their "knowing" the true moral status of the job. Obviously this analogy comes up short in some ways, especially in terms of the gravity of consequences. The soldier's fighting in an unjust war results in a lot of death and chaos; the drinking age law might reduce certain forms of mayhem. And I don't want to overstate the significance of the obstacles facing the police. But the analogy does suggest the propriety of our ordinary moral judgments when we endorse MEC. The communal feature of both the policeman's and soldier's action influences our moral judgments, and rightfully so.

Some theorists suggest that MEC is a moral peculiarity, that is, that war is the only case in the moral world where we don't hold partially liable those who are a party to or are complicitous in an unjust act. But this contention doesn't seem right at all; it certainly isn't obvious that it is a moral phenomenon peculiar to war. Again, consider the example of the police officer. To judge a police officer's enforcement of communal laws independent of the context of the community is itself an unjust act...it is a sort of category mistake. He is enforcing the law just because it is a law. And his ignorance is not accidental to his situation; it may not be invincible (the ignorance), but it does seem to be so integral to his experience that we can say that he was complicitous in an injustice yet not guilty of a wrong doing.

I offer a hypothetical. Suppose a corrupt police chief arranged it so that two teams of his officers would mistake the other group for a criminal gang, and could arrange it to appear that one "gang" were attacking another "gang." Say Team A was undercover, pretending to run a crack house. Say Team B was an undercover SWAT team (this is no less plausible than M's Implacable Pursuer). Because the police chief was making a lot of money off the drug trade, and the investigations of Teams A and B appeared to be on the verge of exposing him, he sends Team B to raid the "crack house." At the same time, he alerts Team A that he just got a hot tip informing him that they were about to be attacked by a gang, whose members wanted to eliminate competition in the crack trade. Team B breaks down the door, and the chief somehow makes it appear that Team A opens fire. Now both groups think they are under attack by a criminal gang. The teams have every reason to believe that they are under fire from people using force unjustly, involved in an illicit venture. It seems to be that neither team is acting unjustly in using force against the other, even though an injustice is being done. And it is being done, clearly by the police chief. In the aftermath, we would judge it as a great tragedy, but I don't think that we would judge either side as having acted unjustly, even though neither has justice on their side; that is, they are using force against those who are not guilty of wrongdoing. I grant that there are points of disanalogy with respect to soldiers in war. In my example, one might make the case that neither side is unjust, but that in war, there will be an unjust side. But the analogy does point to something important about the traditional distinction in just war theory between jus in bello and jus ad bellum as it informs the issue of MEC. The moral responsibility for jus ad bellum falls on the shoulders of the state apparatus, for the reasons discussed above; soldiers are moral equals precisely for this reason. For the same reasons we don't blame the police officers in this example we should not blame soldiers; there were no unjust police officers, there are no unjust combatants -- ceteris paribus.

Instead of distinguishing soldiers on various sides in a war as just or unjust, perhaps it is more appropriate to classify combatants on all sides of a conflict simply as victims. We are all of us victims of whoever starts an unjust war of aggression; he uses all of us, his soldiers and civilians and our soldiers and civilians, as mere means in the same way that the corrupt police chief used his officers. Combatants find themselves in the same hell, a hell created by someone else and about which they have little control.

Conclusion. Perhaps my argument amounts to nothing more than special pleading. In the midst of a war that many of us feel is enormously stupid (a catastrophic success?) and monstrously immoral, we continue to serve. Yet many others of us think the war was strategically necessary and is morally justified. And we continue to serve, although with fewer reservations perhaps. Now, does that mean that one group is morally corrupt and the other morally obtuse? Maybe. But there is another way of looking at it. Namely, what amounts to the sort of knowledge that would give any of us the moral certainty to condemn the other seems very difficult to come by -- not impossible, surely, but certainly difficult enough to justify the suspension of our private judgments. And this is not a position I am comfortable with. Does it amount to surrendering our moral autonomy? If so, it is not supportable. But I hope my argument provides some reasons to resist this conclusion.

Finally, and this is not to shift the blame but to share it if it's there. And this applies narrowly to my particular military in this particular historical context. Officers swear allegiance to the Constitution. Enlisted service members swear they'll obey the orders of officers appointed over them. The Constitution requires absolute subordination of the military to the civilian leadership, and we take that very, very seriously. So, short of being ordered to do something blatantly unconstitutional, we owe it to the American people, to ourselves, to obey our elected officials. I don't want to offer a slippery slope argument here. But there does seem to be a real problem if we were given a lot of latitude about the wars we fight. What if some horrible genocide were occurring, like Rwanda? Should the military conduct a humanitarian intervention even if it were not authorized by the president? Should we disobey those orders to stand down?

What about what Walzer calls the policy elite, or 52 million Americans? They are our only advocates. Are we to be condemned for abiding by our Constitutional duties, our obligations as citizens to our fellow citizens when they are not abiding by their responsibilities? We submit willingly to a political process, trusted by the American people to do so, and trusting the American people to hold up their part of the bargain, to hold accountable their government. So we might, at the very least, feel uneasy when we hold the military accountable for the decisions, apathy, and self-interest of others, when we condemn them for doing what it is we demand that they do.

NOTES