The Moral (In)equality of Combatants
Colonel Daniel Zupan
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
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. 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. 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.
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
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.
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
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
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.
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
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
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.
 I will not take up the argument of whether this world arrangement is optimal or even desirable. But it do note that many people, for example, Michael Ignatieff, think that won of the best, most effective antidote to chaos, international crime, ethnic strife, etc., is the creation and maintenance of healthy nation states.
 I do not want to rule out the permissibility of civil disobedience.