Working title:

“Supreme Emergencies and a Prima Facie version of Just War Theory”

Prof. Patricia Steck, Century College (MN)

James Childress, in Just War Theories: The Bases, Interrelations, Priorities and Functions of their Criteria, sets the stage for the larger purpose of this paper when he says:

There are at least two useful approaches to an ethical critique of the criteria of just wars. One is to start from basic ethical principles and to ask what criteria of just wars can be derived from them. The other is to start from the just war-criteria that we have inherited and to criticize them in terms of consistency, coherence, and fidelity to fundamental principles and values. Within either approach we move back and forth between our practices, including our ordinary judgments, and ethical principles and theories.[1]

Michael Walzer’s Just and Unjust Wars, written in light of the Vietnam War, made the most significant recent contributions to our understanding of the ethics of warfare.[2] Walzer also made a very controversial move when he allowed for the permissibility of an exemption to the just war principle of non-combatant immunity in the case of a population threatened by a supreme emergency.[3] Walzer’s critics claim that allowing an exemption to the rules of warfare overstates the value of preserving a community and opens the door for even well-meaning political leaders to resort too quickly to attacking civilian populations.

The focus of this paper will be on the problem of supreme emergency exemptions to non-combatant immunity. The end of this paper will demonstrate the advantage of a properly framed just war theory which allows for overriding the principle of non-combatant immunity while retaining constraints on the use of force in times of war. The paper will conclude that the proper way to frame the ethics of warfare is as an application of Rossian prima facie duties and justify the addition of a prima facie Doctrine of Defense in Dark Times.

In order to demonstrate the necessity of seeing the ethics of warfare as in terms of prima facie duties it will be necessary to begin with a summary of current just war theory. I’ll then give an explanation of the problem of supreme emergency exemptions to non-combatant immunity. After that, I will explain the basics of Rossian prima facie duties and how the current ethics of warfare is an application of these duties. I will then make the distinction between the doctrine of double effect and the doctrine of double intention and create the doctrine of defense in dark times. Finally, I will answer two of Martin Cook’s objections to supreme emergency exemptions to non-combatant immunity.

Just War Theory and Supreme Emergency Exemptions to non-combatant immunity[4]

Since the purpose of including just war principles is to provide context for the problems caused by a supreme emergency exemption to the principle of discrimination, I will keep my description of just war theory brief. While there are differences in the details and phrasing and justification of the ethics of warfare, there is also a consensus concerning the core set of principles that comprise the just war tradition.

The just war tradition is divided into two related areas of concern. Jus ad bellum requirements are the criteria used by political leaders when they decide whether or not to order their troops to wage war. Jus in bello principles are the parameters for just conduct of the war and are generally implemented by soldiers in battle. Jus ad bellum decisions take the parameters of jus in bello into account when deciding whether a war ought to be fought.

Jus ad bellum, the decision to go to war, can be summarized as follows; A just war will be publicly declared by a competent authority, in response to a just cause and with a just intention. A just war will be a war of last resort and will be a response that is proportionate to the harm received. The only instance in which an aggressive action is a just one is a situation in which a larger harm is being averted. A just war will be likely to succeed and have as its goal a just peace.

The principles of jus in bello, just conduct in war, are centered around the idea that the death and destruction of war are things that ought to be avoided as often as possible. Just actions in war will always limit damage done to the damage necessary to achieve the goal and the damage of a just war will always be in proportion to the advantage gained by the action. Just actions in war will discriminate between combatants and non-combatants.

Walzer’s supreme emergency exemption to non-combatant immunity (discrimination)

Orend explains the concept of a supreme emergency exemption (SEE) when he says:

We are therefore confronted with a grave dilemma when it looks as though we can win the war only by setting aside the rules of right conduct. Walzer, to his credit, refuses to indulge the fantasy that such situations cannot actually happen. His way out of this dark dilemma, however, is one of the most difficult and controversial aspects of his just war theory. It is his doctrine of supreme emergency and it permits not merely violation of proportionality against enemy soldiers but even of discrimination against enemy civilians. It is something like the ultimate, no-holds-barred reprisal against the ultimate threat.[5]

The central concern in a supreme emergency is whether or not it could be morally acceptable for civilian and military leaders to override the rules of war when their community is under dire threat. Of most pressing concern are the rules which prohibit the injury of non-combatants.

Walzer argues that it is permissible to override the rules of war, with restrictions that allow such actions only in situations of immediate harm and limit actions to those necessary to insure survival.[6] The case Walzer anticipates makes provisions for an SEE in the case of an armed conflict escalating to pose a fatal threat to a political community in a way analogous to the threat of Nazism to Western Europe during World War II.[7] The essence of the situation is one in which group A threatens group B with complete destruction and B’s only recourse is to defend themselves from A by causing significant harm to group C, when C is a group of non-combatants who would otherwise be immune from harm.

In the context of his discussion of the supreme emergency exemption, Walzer describes the sort of threat necessary in order to qualify as an SSE, “If we are to adopt or defend the adoption of extreme measures, the danger must be of an unusual and horrifying kind.”[8] In order to answer the objection that all war is unusual and horrifying, he counters that it isn’t the case that every war is a situation of total devastation for those who lose. To clarify, Walzer continues on to characterize the actions of Nazism as the sort of threat he has in mind:

…Nazism was an ultimate threat to everything decent in our lives, an ideology and a practice of domination so murderous, so degrading even to those who might survive, that the consequences of its final victory were literally beyond calculation, immeasurably awful. We see it – and I don’t use the phrase lightly – as evil objectified in the world, and in a form so potent and apparent that there could never have been anything to do but fight against it.[9]

Thus, he concludes that Churchill’s 1942-1945 actions, when ordering the bombing of German civilians in order to weaken the Nazis, were justified.[10]

Walzer’s intent is to limit the declaration of a supreme emergency to situations in which the alternative to overriding the principle of discrimination is either the utter devastation of the community and its citizens or some fate worse than death. This does not refer to the usual kinds of military defeats, nor to a non-horrifying loss of political sovereignty or political liberty. His theory requires that in order to declare a supreme emergency the situation must be of the most dire sort and that responses to supreme emergencies are limited to those actions necessary to insure survival.[11] He later continues this clarification when he argues that the bombings of Hiroshima and Nagasaki could not be justified in terms of response to a supreme emergency. This is because the Japanese were not a threat to the United States, they were simply resisting complete surrender.[12]

Orend places additional restrictions on a declaration of supreme emergency

Orend proposes that the following five restrictions be included in just war thinking on supreme emergency. Most of these rules are additional requirements that function to clarify Walzer’s principles, while one of the rules functions as a new constraint on supreme emergency responses.

In support of Walzer’s requirement that response to a supreme emergency be limited to only necessary actions, Orend adds, “first, make sure resort to supreme emergency measures are, in fact a last resort.”[13]The requirement here is parallel to the requirement for war itself being limited to that which is necessary and a last resort. The community must be under immediate threat of destruction. The idea is that, “we have to make sure that supreme emergency measures aren’t taken hastily, out of a failure of imagination surrounding standard tactics.”[14] A situation would fail to be necessary if it were not the last resort or if it were taken due to a failure of the imagination.

Further, public declarations and appeals for help take another step toward insuring that the planned response to a supreme emergency is necessary and that it is a last resort. Orend says, “a second rule of prudence is publicly to declare what one intends to do.”[15] The desired effect is to give the aggressor notice of intended actions so that they realize that their continued aggression will resort in extreme measures being taken to protect the community under threat. Later Orend says that, “the public declaration should also serve as an appeal to the international community.”[16] Orend notes that just as individuals who are in an analogous situation should call for help prior to taking extreme measures, political communities ought to do the same in order to prompt the international community to come to their aid and hopefully to avoid the need for extreme measures. If public appeals fail and a communicated threat to innocent civilians fails to stop an aggressor from placing a community into a supreme emergency situation, then the response of taking civilian lives becomes a necessary move and a move of last resort.

In order to further be assured that the attacks on innocent civilians are necessary, Orend includes the fourth rule. Orend says, “fourthly, one must, to the extent possible, keep one’s mind clear of other temptations, such as the passions of revenge, or bloodlust, or just an inclination to destroy…”[17] This is parallel to the just war theory requirement of a just intention in that the person making the decision to invoke an SEE will not have as their motivation anything other than the survival of the threatened community; the only morally permissible motives must be to take the actions necessary to insure the survival of the community.

Orend’s fifth rule is both in support of the necessary and last resort provisions and, in a way, a new requirement. Orend says, “any supreme emergency measures, above all, must have a reasonable probability of success.”[18] Clearly, taking an extreme measure that is unlikely to succeed would result in a pointless loss of life, thus actions that are unlikely to succeed are unnecessary. The new aspect of this rule is the requirement that the community under threat anticipate the response to their extreme measures and decide that they are able to withstand this response. In short, the requirement is that the measure be more likely than not to result in the end of the threat.

Summary of the Walzer-Orend restrictions on military responses to supreme emergencies:

1) The harm must be immediate and horrifying. (Walzer)

2) The response must be limited to only necessary actions. (Walzer)

2a) Supreme emergency measures must be a last resort. (Orend)

2b) The intention to take supreme emergency measures must be publicly declared. (Orend)

2c) The public declaration should also serve as an appeal to the international community. (Orend)

2d) One must keep one’s mind clear of other reasons for harming innocents, survival of the threatened community is the only acceptable motive. (Orend)

3) Supreme emergency measures must have the probability of success. (Orend).

These principles, taken as a group, form a coherent and understandable set of restrictions on supreme emergency measures. By giving specific restrictions on the declaration of supreme emergencies, the Walzer-Orend restrictions reduce the impact of the objection that any supreme emergency provisions will allow for unmitigated abuse. I will refer to this group of restrictions as the Walzer-Orend version of the acceptable conditions for the declaration of a supreme emergency.

Ross’ Prima Facie duties and Just War Theory

W.D. Ross, in The Right and the Good, creates a pluralistic system of prima facie duties. Among those duties are the duties of non-injury and beneficence. Ross says, of these prima facie duties, “there is nothing arbitrary about these prima facie duties. Each rests on a definite circumstance which cannot seriously be held to be without moral significance.”[19] Ross continues on to name these duties, saying that the list is not necessarily complete or final.

Ross tells us that the duties can be classified according to previous actions of ourselves (fidelity and reparation), or others (gratitude). They can also arise from the possibility of improving the lives of others (beneficence) or ourselves (self-improvement). The primary negative duty is one of ‘non-injury’, which Ross tells us is distinct from beneficence, as it is of “more stringent character.”[20] Still other duties can be traced to “…the fact or possibility of a distribution of happiness (or of the means thereto) which is not in accordance with the merit of the persons concerned; in such cases there arises a duty to upset or prevent such a distribution. These are the duties of justice.”[21] Ross’ version of justice is most easily applied to cases of unfair distribution of economic goods.

The nature of Ross’ system of pluralistic duties is such that there is no hierarchy of duties.[22] There is no pre-determined ranking of duties that would put beneficence over fidelity or any other possible combination. On the theoretical level, each good is equal to all others and in a given context the final duty could be to take action that places one duty above another.[23] In support of the plurality of prima facie duties Ross tells us, “…no act is ever, in virtue of falling under some general description, necessarily actually right; its rightness depends on its whole nature and not on any element in it.”[24] Ross is telling us that there is no abstract way of determining a right action; rather each action’s rightness depends on its context.

Ross reasons that in order to decide on a final duty, we must use our own practical reason. Suffice it to say that Ross’ method for resolving conflicts is left vague in The Right and the Good, but it seems to include the requirement that we use our own judgment or intuition in order to decide on a final duty in any given situation.[25] Finally, when a Rossian prima facie duty is overridden, it isn’t the case that the duty actually goes away. For example, when the duty of fidelity is overridden, the residue of the duty remains and the person for whom a promise was broken deserves an explanation of the reason behind the broken promise.[26]

Ross, on the relationship between prima facie duties and community

The duty to protect the individual rights of members of the community is made clear by examining primary purpose for government, which is protection of the rights of its citizens, the members of the political community.[27] While discussing the basis for criminal punishment, Ross says, “…we have come to look upon the state as the organization of the community for a particular purpose, that of the protection of the most important rights of individuals, those without which a reasonably secure and comfortable life is impossible;…”[28] What Ross says in terms of punishment seems to also apply in supreme emergency situations, “the state ought, in its effort to maintain the rights of innocent persons, to take what steps are necessary to prevent violations of these rights…”[29] While the nature and contents of the rights of innocent persons may be in question, at minimum the rights of innocent persons include the right to continue living. While this is sort of argument is employed by consequentialists, it is also available in a system of prima facie duties, as it is an argument in favor of overriding other duties in order to preserve the rights of innocent persons.

Later, Ross concludes that innocents may be punished if the survival of the nation hangs in the balance, “the interests of the society may sometimes be so deeply involved as to make it right to punish an innocent man ‘that the whole nation perish not’”[30] While Ross’ ideas my be controversial in regards to punishment for crimes, they seem to be less so when used to justify responses in a supreme emergency. So, the purpose of the state is to defend the rights of its people and if necessary, innocents may justly pay the price.

This caveat is important, as the notions of a moral political community and competent authority ought not include dictatorial and regimes whose main impacts on the general population are oppressive or otherwise harmful to individual rights. Actions taken to ‘protect’ such ‘communities’ ought not be morally equivalent to actual communities facing imminent destruction.

The Just War tradition as a sub-set of prima facie duties

Understanding the just war tradition in terms of Rossian prima facie duties continues a project started by Childress in his 1978 article Just War Theories: The Bases, Interrelations, Priorities and Functions of the Criteria. Childress intended to show that the most important justification for just war theory concerned instances in which the duty not to injure was overridden.[31] Childress progressed by explaining each of the traditional just war principles in terms of overriding the duty not to injure. As Childress phrases it, “just war criteria can be illuminated by the language of prima-facie obligations and the content of the particular obligations (not to injure or kill others) that the justification of war must override.”[32]

Childress’ project connects prima facie duties and just war theory

Childress establishes the groundwork for a theoretical framework for the commonly held set of just war norms. Once fleshed out, this framework will increase the coherence of just war norms and provide a context for just war theorists to pay attention to, “numerous issues, including the bases, interrelations, and functions of their criteria”.[33] Childress’ stated goal was not to establish a substantive theory of just war; rather his goal was to, “…show that just-war criteria are important and even indispensable moral standards apart from any particular theory of justice. They are explicable, I have argued, by reference to the notion of prima facie duties and, specifically, to the prima facie duty not to injure or kill”.[34]

Childress articulates the underlying assumption that war ought to be a rule-governed activity and that it ought not be considered merely an extension of politics.[35] This is a key assumption, as the relatively low number of rules in political interactions leads to the maxim, ‘all’s fair in love and war’ and the maxim that ‘war is hell’. Both of these maxims implicitly deny the idea that those waging war can and should adhere to a set of principles that can decrease the hellish nature of war.

In times of war the ethical challenge is justifying overriding the prima facie duty of non-injury. As part of his project, Childress explains each tenet of just war theory in the context of Rossian prima facie duties, thus creating a framework in which a requirement for going to war is a creating the justification for overriding non-injury.[36] The question of how to act in any particular situation or conflict is one of actual duty, in which the person making the decision weighs the decision in terms of competing prima facie duties and comes to a conclusion.

Although Childress explains each of the just war criteria individually, his analysis of the just war tradition does not vary significantly from the commonly accepted elements articulated by others. His explication does introduce one important theme and two supporting themes as a result of being grounded in prima facie duties.

The important theme is more of an articulation of the significant evidence concerning the way in which the overridden duty of non-injury influences many aspects of just war criteria. Nearly every aspect of just war theory is influenced by the idea that the default position is non-injury and every aspect of war ought to be conducted with the underlying value of reducing injury.[37]

In support of this theme, while discussing the principle requiring a reasonable hope of success, Childress introduces the requirement that at least some of a nation’s prima facie duties be achieved by going to war.[38] In his discussion of the requirement for a formal declaration of war, Childress introduces the requirement that a government provide public explanation and justification for its decision to depart from the default position of keeping the peace.[39]

Overall, Childress makes it very clear that the overridden duty of non-injury shapes just war criteria and thus shapes the actions of war. The general idea is that even in situations in which the duty of non-injury must be overridden, its residue remains and even necessary acts of war should be as compatible as possible with the overridden duty. Childress also allows for remorse concerning war, saying that remorse is often an appropriate response to the decision to override a duty.

Another significant element of Childress’ project is the requirement for actors in wartime to explain or report on their actions after the fact.[40] Much in the same way someone owes an explanation as to why one prima facie duty overrides another, actors in international conflicts owe an explanation of the decision to override non-injury.

Finally, Childress comments on Walzer’s treatment of supreme emergency situations.[41] After a quick summary of Walzer’s discussion of supreme emergency justification for breaking the rules of war, Childress asks two questions directly relevant to his discussion of prima facie duties. First, he notes that Walzer’s appeal to necessity, because it depends on utility, may lack needed controls as to when and how the rules of war are violated.[42] He then extends his first observation by arguing that Walzer allows agents to claim that necessity drove their actions, when really it was not the case. He also notes that the language of necessity sets the stage for obscuring the choice to surrender rather than violate the rules of war.[43] In Childress’ words, “as these comments suggest, a more systematic treatment of necessity, guilt and value choices would have been useful.”[44]

I propose an extension of Childress’ project. The central idea is that although there are a variety of possible duties that could cause non-injury to be overridden. As a result, the commonly accepted principles of just war theory become criteria by which the decision to override non-injury can be considered and later justified or explained and as such. This means that the just war criteria function as an application of Rossian prima facie duties. If the person deciding to go to war is doing so under the conditions for just war, then they can access modes of reasoning and decision making available under the prima facie duties. As a result, they are acting in accord with the prima facie duties. If it is the case that the set of just war criteria are an application of prima facie duties, then the just war criteria are subject to the same kinds of calculations, situational judgments and reflexive equilibrium as the main body of prima facie duties. When applied to warfare, this means that a soldier faced with a moral decision on the battlefield can ethically take the context of his decision into account when determining his next action.[45] Finally, the structure of Rossian prima facie duties requires an explanation after the fact. This element would remain within a prima facie set of just war criteria, thus preserving the reflection and reporting requirement useful in improving both military and moral practice.

An important question to ask for any proposed revision is whether or not it contradicts the major thinking in the field? Walzer often speaks in terms of rights and duties. According to Orend, “Walzer talks like this when he stresses that rights are “overridden” in a supreme emergency, presumably by the “highest values” of shared and just communal existence.”[46] Further, Walzer’s own chapter on supreme emergencies has a section titled “Overriding the Rules of War” in which he outlines the logic of Churchill’s decision to override the principle of discrimination in order to win the war against Nazi Germany.[47] Finally, Walzer explicitly discusses overriding the rules of war in a manner similar to that of prima facie duties when he says:

But there are moments when the rules can and perhaps have to be overridden. They have to be overridden precisely because they have not been suspended. And overriding the rules leaves guilt behind, as a recognition of the enormity of what we have done and a commitment not to make our actions into an easy precedent for the future.[48]

It seems fair to say that there seems to be ample evidence on this point, although including a lot more would detract from the focus of the paper. Suffice it to say that Walzer’s underlying ethical principles are not incompatible with Rossian prima facie duties.

Just war principles resemble prima facie duties

At this point, it is crucial to discuss the status of just war principles. If just war principles are established as an application of prima facie duties, they do not become actual duties until the time they must be applied. So, following the logic of prima facie duties, they are all binding in theory. If a situation arises that forces the duties into conflict, one must override the other and an explanation and justification of that decision will be expected.

The optimal situation for prima facie duties is one in which all prima facie duties can be fulfilled simultaneously as actual duties. Just war principles are similar because when they become actual duties, each principle could be overridden by one or more of the others. It is an important caveat to note that each just war principle is so important that going to war with one of the principles overridden would require an extraordinarily strong justification. This is because the set of just war principles, as a group, function as a restriction on instances of overriding the principle of non-injury, thus going to war without one of those principles in place requires an even stronger justification. So, instead of the optimal war being one in which each just war principle is fulfilled, this is the default situation and the extraordinarily rare war is one in which one just war principle overrides another.

Relevant Just War Principles explained in terms of Prima Facie duties

While a complete revision of the Just War principles is beyond the scope of this paper, a brief discussion of the principles relevant to supreme emergencies is necessary. These just war principles work in conjunction with the Walzer-Orend restrictions on supreme emergency responses. The two most relevant just war principles are the principle of competent authority and the principle of discrimination.

The jus ad bellum principle of competent authority is the question of who is justified in declaring or leading a just war? The traditional answer is that political leaders or those with authority over a chain of command have competent authority. The idea is to distinguish wars from vigilante justice etc. The problem with this answer is that it is relatively vague and it does not require a direct relationship between the person claiming competent authority and a group of people.

A prima facie duties explication of competent authority adds the question of what is the relationship between the person with competent authority and the population they lead? The answer is that the person in the position of competent authority makes and acts to keep a promise or set of promises to the people they lead. In democratic societies, this promise is usually explicit and comes in the form of a set of campaign promises and, much more importantly, an oath of office. These promises articulate the person’s intentions as a leader and outline their duties to the population. In non-democratic societies, the promise is less often an explicit one, but the promises are more often made implicitly when the leadership position is accepted.

The jus in bello principle of discrimination between combatants and non-combatants is the other important principle. Traditionally, this is the question of who is a justified target? Clearly, the answer is that innocent civilians ought not be targets. The prima facie analysis of this principle is that the duty of discrimination is based on the prima facie duty of non-injury. In the case of war, the principle is overridden in terms of combatants, but maintained in terms of non-combatants. So, while the prima facie duty remains, the duty for soldiers in times of war is to target combatants and not target non-combatants.

Additionally, as will become clear later, the logic of overriding duties is applicable when determining actual duties to non-combatants. The short version of this analysis is that, while military actions always involve some degree of risk to civilians, as a situation progresses toward being a supreme emergency, the doctrine of double effect overrides the doctrine of double intention. At the time of a supreme emergency, the doctrine of defense in dark times overrides the doctrine of double intention. As each doctrine is overridden, the remaining duty functions as a residue that continues to restrict military actions. Underlying each of these doctrines is the residue of the prima facie duty of non-injury.

Supreme Emergencies seen in light of prima facie duties

The moral conflict in a supreme emergency is one in which the just war principle not to harm non-combatants elsewhere is put in direct conflict with the competent authority’s promise to preserve and protect the non-combatants in their own their community. Political leaders must choose between the moral wrong of planning to attack innocents and the moral failure of not taking every action possible to deliver on their promise to protect their own community.

The proper theoretical framing of this choice ought to be seen as similar to Rossian prima facie duties. In theory, a political leader in a supreme emergency is bound by two conflicting theoretical duties. Fulfilling one duty, moving from prima facie duty to actual duty, necessitates overriding the other, and as such also entails acting in accord with the residue of the overridden duty. Further, the political leader owes an explanation of the reasoning behind the action they choose to be an actual duty.[49]

The Doctrine of Double Effect (DDE), the Doctrine of Double Intention (DDI) and the Doctrine of Defense in Dark Times (DDDT)

Just war theory, if it is to be accepted and applied, must be useable and reasonable. Orend positions just war theory in terms of its application in conflicts, “the upshot of just war theory, after all, is precisely to devise coherent rules that statesmen and soldiers can refer to as they make choices under heated wartime conditions.”[50]

Further, it seems intuitively plausible to see supreme emergency exemptions as akin to a necessary safety valve for a population and its leaders. In a situation where civilians are going to die in either case, it seems at least initially implausible to expect that a population should sacrifice itself on behalf of a distant and population. This is exactly what is being posited when the possibility of a supreme emergency exemption is denied. The wrong of a supreme emergency is magnified when it is realized that the victims in supreme emergency situations are not the powerful, but rather the weak or those who are out-numbered in society.[51] In the extreme conditions of the tragedy of a supreme emergency, denial of a potential avenue of self-defense for a population is unreasonable. For these reasons, my overall position is that an understanding of the ethics of warfare that can allow such actions to be moral while preserving the integrity of the just war tradition ought to be preferable to one that cannot allow it.

The balance of this paper will argue in favor of the conclusion that political leaders, in defense of their community and within the parameters of just war theory, ought to be permitted to respond with any means necessary when threatened with obliteration. I will begin by demonstrating how viewing the ethics of warfare in terms of prima facie duties allows for understanding the conditions immediately before supreme emergencies as times in which the principle of discrimination changes from being governed by the doctrine of double intent to being governed by the doctrine of double effect. When a community is threatened by a supreme emergency, double intent is overridden by the doctrine of defense in dark times.

If just war principles follow the logic of prima facie duties, in the unusual situation of a just war principle being overridden, the overridden duty, principle or doctrine leaves a residue. Acting with this residue in mind keeps the actions of politicians and military members within the moral framework of the prima facie duties and thus also within the broader just war tradition. As Childress argues, the prima facie duty overridden in times of war is the duty of non—injury. Along with the logic underlying the prima facie duties, the residue of the duty of non-injury persists in times of supreme emergency.

The Doctrine of Double Effect (DDE)

The just war principle prohibiting harm to non-combatants requires additional clarification, thus the principle of discrimination has been understood in terms of the doctrine of double effect. Fitzpatrick describes the doctrine of double effect when he says:

DDE: An act of the relevant type (e.g. bombing the munitions plant) is permissible just in case there exists a justification for it in terms of a sufficiently worthy end that can be pursued through so acting without intending anything illicit as a means.[52]

Generally, the idea behind the DDE is that if an action has a worthy end, actions that accidentally harm innocents can be justified in light of that goal. In situations of this sort, civilian deaths may be an unintended but foreseen consequence. As long as the foreseen civilian deaths are not intended as the objective of the action, then the action is permissible under a DDE influenced principle of discrimination. This is the same sort of reasoning employed when using prima facie duties in other situations, as any harm done when one duty is overridden isn’t intentional.

The problem with DDE, and the motivating factor for Walzer’s additional constraints on DDE is phrased by Carlino when he says, “…foreseen deaths are not in fact intended, but are knowingly caused and accepted to obtain some end.”[53] So, while it is impermissible to aim at civilian deaths, taking an action that is very likely to create significant civilian risk is acceptable under DDE.

Walzer’s Doctrine of Double Intention (DDI)

Under normal conditions of war Walzer finds the doctrine of double effect not restrictive enough.[54] A prima facie duties analysis generates the observation that more could be done to conform to the overridden duty not to injure others. The need for an additional constraint on DDE creates the more restrictive doctrine of double intention. DDE requires that soldiers not try to harm civilians and Walzer’s added constraint creates the DDI, which requires that soldiers try not to harm civilians. The DDI requires the military to choose the option or tactic that is most likely to attain the objective and the tactic that reduces the risk of civilian deaths. While it is possible that the militarily optimal means to achieve the goal is also the means that reduces civilian risks, when it is not, the military still should choose it. Also, under DDI, the military has the obligation to use the means that reduce civilian risk even when the result is increased risk to the soldiers involved.

Of course, the immediate objection to DDI is that combatants have no duty to take on additional risk in order to protect the civilian compatriots of his opponents.[55] The problem is that the objection is based on a false dichotomy between the non-combatants in the homeland of the combatants and the non-combatants in the homeland of their opponents. As Lee says, “the moral right of civilians not to be harmed results from their status as human beings irrespective of their nationality.”[56] With this major objection answered, it seems clear that under normal wartime conditions, the military has an obligation to choose tactics that reduce risk to civilians.[57]

Significant Threat justifies a shift from DDI to DDE

Walzer’s characterization of supreme emergencies seems a bit faulty. Supreme emergencies don’t just happen. It isn’t as if a just war progresses normally and then, suddenly, the continued existence of the community is threatened. In conventional war, strategic positions deteriorate, the community loses more battles than it wins, intelligence indicates a higher likelihood of invasion and the situation generally becomes significantly bleaker. In this situation, troop loss is high, perhaps morale is low and the community is feeling significant harms from lack of resources. The situation is not a supreme emergency, but if things don’t change, it could become a supreme emergency. This is the situation of significant threat.

During times of significant threat the political leadership is can justify allowing the military to act in ways that are militarily necessary but risk harming civilians. At this stage the military must not try to harm civilians, but the focus has changed from protection of civilian life on the battlefield to one of military necessity. Thus, at times of significant threat the side fighting the just war is permitted to override the additional side constraint of DDI, thus reverting to the residue of DDI, DDE.

This shift is permissible only in defensive situations, regardless of whether or not the war began as an offensive or defensive just war. In a defensive situation, the shift from DDI to DDE is morally justified only when the military is acting in defense of their community by trying to keep the situation from shifting from significant threat to one of supreme emergency.

Overall, this application of prima facie duties conforms to the duty not to injure because it is better to allow some increased risk to civilian life and property in order to prevent the destruction of civilian life and property in a supreme emergency. So, if a supreme emergency can be avoided by following DDE rather than DDI, the shift is warranted.

Doctrine of Defense in Dark Times (DDDT)

In the balance of this section I will argue for the conclusion that when the increase in military options permitted by DDE fails in a defensive just war, the situation permits actions that override DDE. When DDE is overridden, the Doctrine of Defense in Dark Times is the residue.

This is where I come into the sharpest contrast with Orend. My argument is that within a well-formed just war theory there is a duty to do whatever is necessary to protect a community under threat of horrific and catastrophic destruction. My disagreement Orend centers on the idea that, “you don’t have the right to do wrong, or a duty to violate duty: if you do wrong, even under the pressure of supreme emergency conditions.”[58] In Orend’s terms, I will argue that in times of supreme emergency, some people have a duty to do what would otherwise be wrong.[59]

An objection based on the analogy to self-defense

Those who object to attacking civilians in supreme emergencies argue that the analogy to self-defense does not apply to attacking innocents in a desperate attempt to prevent community destruction. They argue that, in essence if B is attacking you, you cannot attack A in order to get B to stop. B is your problem and A, being an innocent like yourself, ought not pay for B’s actions against you. Similarly, if a patient in need of an organ transplant is not permitted to take that organ from another person nor is any person morally required to donate an organ to you. Finally, it is considered cowardly to place another in harm’s way to save yourself. All of these situations are posed as analogous to attacking innocent civilians in a supreme emergency, and thus the conclusion that attacking civilians in response to a supreme emergency is an impermissible response.

A response to the objection based on the analogy to self-defense

Prima facie duties are generally based on observations about the world. A brief survey of the founding documents of nearly every functioning state reveals some similar duty to protect the lives and interests of its population. In fact, the function of assuring the safety of the community seems to be one of the only factors common to each of these founding documents.

Another grounding of this duty seems to be the intuitive wrongness of asking the leader of a community to refrain from community-saving actions so that another community can survive in their place. This sort of sacrifice is distinct from the scenario of putting an innocent individual at risk to save myself because the political leader making the decision is not just making a decision for herself. For example, in any situation I can decide on my own behalf that saving myself is not worth the sacrifice of an innocent person or persons, but the scope of my decision-making ought not allow me to decide that person ‘a’ should die to save person ‘b’. Adhering to the Walzer-Orend restrictions on supreme emergency responses further reinforces this position, as the requirement to publicly declare intention to respond by targeting civilians allows the aggressor to stop in order to save those civilians. Thus, it seems that there is a duty for those in power to act conservatively and thus to defend against catastrophe, or a duty of defense in dark times.

When a person accepts a political leadership position, they make an explicit promise, in the form of their particular oath of office, to serve the community. With the commitment to serve the community comes the power to order a defense of their population in dark times. This is connected to the just war principle of competent authority in which the person holding competent authority is permitted to use their judgment to decide if and when to wage war. Defensive wars are the most easily justified wars and supreme emergency situations are inherently defensive. As long as the political leadership follows the Walzer-Orend restrictions on supreme emergency reactions, the decision to defend a population by attacking an innocent population is a permissible option.

When a person is in the military, their oath includes a promise to protect and defend the US is what establishes their role as a member of the military. Part of their role as members of the military is to follow orders to act in defense of their community in dark times. While the military leadership has a duty to advise the political leadership concerning techniques and the likelihood of success, except at the very highest levels of military leadership, their scope of responsibility does not extend to the decision as to whether or not the action should be done.

In both the case of the political leader and the military person, the Walzer-Orend restrictions apply to their actions, but ultimately they have a perfect duty to act. Failure to act permits the slaughter of a community they made a commitment to protect. In essence, to do otherwise would be to require them to allow the sacrifice of their own society in order to save a society to which they have only the most general of commitments. When political leaders make real-life decisions, the actual duty needs to be justified and thus, either way, an explanation of the choice is necessary.

It is important to note that the actual duty is limited to persons with the power to act, so if a person finds themselves in either a political leadership or a military role with an actual duty they cannot carry-out, they do have the option to resign. Taking oaths of this sort do not create absolute duties, rather they permit people to choose one of these duties as their actual duty when prima facie duties come into conflict. Ordinary citizens do not have the power or duty to act in these situations. Since resigning a position returns a person to the status of ordinary citizen, a person who cannot carry out supreme emergency responses that violate non-combatant immunity can escape their commitment.[60]

Cook’s objections concerning the value of community and the implementation of supreme emergency exemptions

Martin Cook raises two valid objections to the idea of a supreme emergency exemption to non-combatant immunity.[61] Both of these objections are significant and common, thus they warrant in-depth answers. In order to set the context for Cook’s objections, this section will begin with a general discussion of the nature of a political community along with Walzer’s view on the importance of preserving a political community. Next, I will present and give quick answers to Cook’s objections concerning Walzer’s focus on community as well as his concern that establishing a supreme emergency exemption is dangerous. Finally, I will develop an extended answer to Cook’s community objection. My answer will develop the value of community as it relates to the just war principle of competent authority and in the context of prima facie duties.

General thoughts on community and Walzer’s description of ‘political community’

While it is nearly impossible to create a strict definition of ‘political community’, so that it can be said that person X is inside political community ‘a’ and person Y is outside political community ‘a’, the unique nature of each political community is at least intuitively plausible. This is the case even in light of the idea that some people will belong to more than one political community. Each political community gains its character, and thus its value as a unique entity, from the decisions of its members. In turn, the political community as a collective shapes and informs the members themselves.

One way to be more specific about the definition of a political community is to outline what a community is not. While a community may occupy a particular plot of land, it is not defined by the place they occupy. So, a community is capable of moving and remaining a community.[62] Also, while a community may have one kind of political system or have a particular political leader or leadership, those things do not define a community. A community can change leadership and form of government and remain a community.[63]

Walzer describes the political community as consisting of men, women and children living in a certain way. It is a feature of our lived reality, a source of our identity and self-understanding. Replacing a political community requires either the elimination of the people or the coercive transformation of their way of life. Walzer conceives of a supreme emergency as a situation that threatens what he calls a political community’s “ongoingness”.[64] It is the loss of the continuation of the community’s distinct religious and cultural practices and the necessary violation of basic human rights necessary to accomplish this loss, that is the horrific part of a supreme emergency.

Supreme emergencies are not the ‘normal’ threats of war, which have historically left political communities intact. In Walzer’s terms, such ‘normal’ wars are changes in state. Walzer makes a crucial distinction between the state and the political community. He says, “the state is nothing more than an instrument of the community, a particular structure for organizing collective action that can always be replaced by some other structure.”[65] Thus, the state is the form of government, or the means by which the community is organized. Walzer’s point is that the form of government can change without damage to the political community and that change of political community requires that community to be destroyed or otherwise coercively transformed.

Walzer’s argument in favor of supreme emergency exemptions relies on the idea that something is uniquely tragic about the loss of a community that is more than the tragedy of the collective loss of the individual lives. This loss is significant enough to justify the actions necessary to defend the community from extinction. As Walzer’s analysis explains:

We might better say that it is possible to live in a world where individuals are sometimes murdered, but a world where entire peoples are enslaved or massacred is literally unbearable. For the survival and freedom of political communities – whose members share a way of life, developed by their ancestors, to be passed on to their children – are the highest values of international society.[66]

Because the practices cease to exist when the community is destroyed, it is the practices of the community that are of value in an supreme emergency. The loss of these practices separates supreme emergencies from other, less horrific levels of threat. A community can always physically re-build itself after a war, but if its population is decimated, then there is no way for the community and its unique values and practices to return.

Cook’s objections to Walzer’s supreme emergency exemption to non-combatant immunity

Cook constructs a criticism of Walzer that amounts to, “Walzer exaggerates the importance of a particular snapshot of political community, despite his thoughtful emphasis on the historical fluidity of the formation of those communities.”[67] He then continues on by examining the situation of the Native Americans in his home state of Colorado, saying that the experience of vast majority of Mexican Americans are more accurately described by a quote from Henry Sidgwick which says that if the actions of new political orders are ‘mild’, over time the immorality of the actions necessary to change the political order becomes less significant.[68] Thus, Cook concludes that the lasting moral impacts on the loss of a political community are not significant.

Given the less than significant long-term impact of the loss of a community, Cook’s conclusion is that the risk of even well-meaning and moral politicians easily resorting to supreme emergency responses outweighs the good of preserving the community.[69] Cook’s final analysis agrees with Orend, who categorizes supreme emergency responses as sometimes being a prudential move in a moral tragedy.[70]

Cook’s other worry is that a just war theory that allows for even a theoretical supreme emergency exemption to non-combatant immunity will result in even well-meaning political leaders reaching for the exemption, “too quickly and too easily.”[71] Cook’s worry is not that malicious leaders will cite this section of just war theory when it is convenient for them, rather his worry is that leaders concerned with conducting just wars will see themselves in supreme emergency situations when they are not. Thus, including allowances for supreme emergency exemptions in just war theory creates an undesirable situation.

The quick response to Cook’s worry that the Supreme Emergency Exemption will be used too quickly[72]

It seems as if the objection ignores restrictions developed by Walzer and Orend’s on the use of exemptions to non-combatant immunity. In particular the deeply imbedded requirement that a moral leader must exhaust every possible option and waits until, “the heavens are about to fall” before attacking innocents.[73] So, just as bad cases make bad policy, assuming abuse of moral theories results in both bad moral theory and bad policy.

Additionally, seeing supreme emergencies in terms of prima facie duties decreases the likelihood of a quick retreat to attacking civilians because when the duty of non-injury is overridden in a SER, one of the residues requires an explanation and accounting of why such an action was necessary. This is similar to the ‘mechanism of review’ Cook calls for within his objection.[74]

Political leaders who take their position as competent authorities seriously are unlikely to quickly reach for the SER button, even in situations in which it might be justified. This is due to a justified fear that their justification won’t hold water with the public, or that their reading of the circumstances leading to the justification will be proven wrong. For example, few U.S. politicians will forget George W. Bush’s October 2002 argument in support of invading Iraq, which relied on faulty evidence that Iraq possessed WMD. When it turned out that the evidence in favor of WMDs was questionable all along, the political fallout was significant.

A quick response to Cook’s point about Native Americans and the temporary nature of communities

Cook specifically situates part of his response to Walzer as being written from Colorado, arguing that, in essence, if the Native Americans were permitted the exemptions Walzer supports, then he would not be in his current location.[75] The implication is this result would be a bad situation. For the time being I will set aside the problematic is/ought reasoning of the conclusion to focus on the substance.

As I write this paper I am about 100 miles from the site of the Mankato Massacre of August 1862, in which the Sioux, in an attempt to drive the settlers out of the territory, attacked and killed settlers in Mankato, MN. Had they been successful, it is quite possible that I would not be enjoying my time living in St. Paul, MN, and frankly that is OK with me.

If I am correct, assuming the conditions met the Walzer-Orend conditions for a supreme emergency response, the attempt by the Sioux to protect their territory would be justified. In hindsight, a supreme emergency response of this sort seems justified if it could prevent the significant decline in the ability of Native Americans to continue their traditional cultural practices, their rising rates of alcoholism, unemployment and decreased life expectancy.

Further, Cook argues that a community is a social construction and as such, they form and dissolve on a regular basis and have done so over the course of history.[76] In this argument Cook lumps all community dissolutions together and then claims they are alike. Thus, a community whose members choose to disband for either cultural or economic reasons is considered the same as a community destroyed against their will. When a community is forcibly destroyed or given the terrible choice between annihilation and disbanding, what is lost by force is that unique way of living. This is significantly different than a community that chooses to disband or whose interests change, leading to the slow dissolution of the community.

Finally, Cook seems to conflate changes in state with changes in political community.[77] In Walzer’s defense, he explicitly argues against such a conflation, saying that while a change in state (i.e. type of government or ruler) can be achieved without human rights abuses, while a forced change in political community requires either the elimination of the members of said community or their involuntary ‘reprogramming’.

An argument in favor of placing a high value on community

The first question to be answered is whether or not people actually do value community? Examining the means necessary to forcibly destroy a community reveals an indication of the value people place on community. More often than not those means require horrific abuses of human rights, including rape, torture, murder and religious persecution. Thus, people value their community so highly that extreme and ultimately evil acts are necessary to destroy it.

At this point the central question becomes something like, ‘what could be valuable enough about the community under attack to justify overriding the principle of non-combatant immunity?’ Because we have not yet moved to the realm of actual duties, what is needed is a justification independent of the individual qualities of any given community. Thus, the final question is more like, ‘why should just war theory permit, on the theoretical level, a principle allowing a political leader to override the principle of discrimination and choose an actual duty that entails an attack on civilians?’.

Cook’s criticism of Walzer’s reliance on the value of communities seems to miss the real function of community in just war theory. The community is the basis for the political leadership’s justified claim to being the competent authority. In fact, it is the politician’s promise to the community, when they are sworn in, that is the formal and explicit connection between the politician and the community. Further, it is the existence of the relationship between a competent authority and their community that requires, in a prima facie duties system, a political leader to justify and explain their decisions to the community. A leader without an explicit promise and who therefore lacks a relationship between themselves and their community is more like a tyrant or dictator than an authority morally permitted to wage war, i.e. a competent authority.

Therefore, political leaders, faced with the imminent destruction of the way of life of their community, have something resembling a prima facie duty to conserve that community when possible, i.e. the DDDT. This duty is based on the promises made when they accepted jobs with public accountability.[78] The range of their promise to defend the community is important, as it does not necessarily extend to defense of people outside of the community they represent. It may be the case that, in times of peace, representing a population does include acting to benefit those outside of the population represented, but in times of conflict this does not necessarily continue.

Since just war theory is properly seen as an application of prima facie duties, it is reasonable to follow Ross in developing a theory that is a, “direct reflection on what we really think.”[79] As such, extreme circumstances that result in extreme actions in line with the Walzer-Orend restrictions on responses to supreme emergency seem to be such a reflection. In short, it seems intuitively plausible that leaders faced with a choice of ‘us or them’, could choose to fulfill their duty to preserve their own community in a last-resort act of self-defense.

A final way to look at the function and value of a political community is to equate it with the concept of a state’s civil society. The political science term ‘civil society’ refers to the network of religious, educational and economic institutions that form the context of our daily lives. This network includes all formal organizations that serve to mediate the relationship between an individual person and the state.[80] It also includes formal organizations that lobby the government on behalf of groups of persons and institutions such as labor unions that negotiate with all kinds of employers on behalf of individual workers.

Compromise becomes necessary whenever people live together. One way to understand these compromises is in terms of one prima facie duty overriding another. Therefore a civil society is the result of individual decisions made within a moral framework of prima facie duties. As a result, a civil society reflects and represents the collective values and practices of its members. A civil society also creates the context in which people develop their intuitions as well as the context of their actual duties.

Following Rawls, civil society is the way in which the abstract conception of justice is embodied. Another way to think about a political community is as the result of generations of rational people working to produce a situation in which justice is enacted and their primary social goods are maximized. A well-ordered version of such a society has a core set of shared principles that allow for a veritable plethora of ‘good lives’, each with its own unique challenges and joys.[81] A political community is a collection of those ‘good lives’. The totality of those efforts creates the political community, which is a unique context in which individuals understand both themselves and others.

Although Rawls’ list of the elements of a good life is long, the larger elements of political society (religion, education, and secular cultural practices) all necessitate a group either to facilitate or permit them. For example, a key element of a religion is the religious community of believers. A person can practice alone, but the core religious practices require a community of believers with the freedom to practice in ways dictated by their spiritual beliefs. Likewise, non-believers rely on a political community whose values include toleration of those who choose not to participate in any religion.

Education is communal at several levels. The traditional school-based model requires both a teacher and classmates, as well as the financial support or at least the toleration of the broader community. Even those who are ‘self-taught’ or home schooled, rely on the transmission of knowledge from others. At times, the contents of a curriculum are controversial simply because both sides of the conflict see the curriculum as an expression of the core beliefs of the political community. For example the controversy over including the notion of an intelligent creator in science class reaches well beyond the walls of the school, becoming instead a question of public policy.

Other secular or cultural practices, be they festivals, food or sporting events require the participation of a portion of the group and, at a minimum, the tolerance of the larger political community. These practices may have begun as expressions of religious or other spiritual values, but when they continue in their secular form, they require a political community.

A regime whose military aggression rises to the point of becoming a supreme emergency is less than likely to allow the cultural fabric of a conquered people to remain intact. In fact, part of the definition of supreme emergency is the justified belief that the aggressors will take the horrific actions necessary to destroy the community. Thus, the distinction between a supreme emergency and a normal military defeat relies on whether or not the aggressor will permit the conquered community continue to function as a community.

At best, the victors insist on assimilation into their culture (much like the US and Native Americans), at worst, cultural leaders and others who attempt to practice their preferred cultural practices will be persecuted. Either way, it is part of the definition of a supreme emergency that the core cultural practices that comprise the ‘good life’ of the community will not be permitted.

In the modern world, globalization allows adults who find that their community does not provide the means for happiness the choice to either reform that community or leave it for a community more to their liking. As a whole, the life of a community IS a way of life. That way of life is one that has been developed, refined and chosen by the members of the community either out of tradition or because their way of life makes them happy.

Without giving significant value to a political community, competent authority can only be justified by reference to the state. Thus, any leader who can claim a large population in his or her state can also claim competent authority to wage war. This leads to an impermissible situation, as it cannot be the case that the use of force to take over a government creates an instance of might making moral right. In fact, the support of a political community is so important that dictators often seek to eliminate the political community / civil society as it is fertile ground for opposition. For example, when Idi Amin was the head of state in Uganda from 1971 to 1979, one his major aims was to destroy the political community in Uganda. As a result, he ought not be considered a competent authority because he lacked the support of the civil society.

At the root of all of these descriptions of political community is the core function of a political community as a unique context for the lives of individuals. This unique context forms the background for their daily lives and practices. It also forms the context for their higher reasoning, creative endeavors, spiritual aspirations, and moral deliberations. This context has been shaped by prior generations, thus it brings with it the traditions of the past while it also protects the lives and interests of future members of the political community. Providing for the continuation of the community insures future generations of people will be able to choose to hold the same principles as the current generation, but who have chosen their own version of a ‘good life’.

Conclusion

This paper provides an answer to one of the most significant questions in the ethics of warfare, the question of whether or not to break the rules of war in times of supreme emergency. It responds to the question, not by accepting the breaking of the rules or creating a loophole that allows for the breaking of those rules, but rather by changing the underlying ethical framework supporting the rules so as to make actions in times of supreme emergency fit within the larger just war tradition.

There is certainly further work to be done in terms of a prima facie version of the ethics of warfare. Part of that work involves a lengthy revision and updating of the jus ad bellum and jus in bello portions of the theory to include lessons learned by our current ethical wartime challenges. These conditions probably ought to include a new provision requiring an exit strategy or victory conditions as one of the jus ad bellum conditions.

In recognition of the fact of modern warfare that the beginnings and ends of wars are no longer clearly delineated, additional categories of warfare ethics should be developed. Orend’s work on jus post bello requirements of an ethical war are just being developed and could benefit from inclusion in a prima facie framework of duties just as a new category of jus pre bello duties should be developed as well.[82]

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NOTES