The Ethical-Legal Dimensions of Strategic Bombing During WWII:

An Admonition to Current Ethicists

by LTC Peter R. Faber, United States Air Force Academy 
A paper prepared for presentation to the Joint Services Conference on Professional Ethics XVII Washington, D.C. January 25-26, 1996

 (The views presented herein are entirely those of the author, and do not repres ent the official position of the JSCOPE Conference, the United States Air Force, the United States Air Force Academy or the Department of Defense.)

I would like to respond to three fundamental questions that men and women of conscience have raised vis-`-vis strategic bombing in the European Theater during World War II: was "the" just-war tradition applicable to the concept of noncombatant immunity, did a "demoralization" of air warfare occur in the interwar years, and did American airmen ignore the moral dimensions of strategic bombardment in Europe?

 Scholars like Michael Waltzer tentatively acknowledge that the just-war tradition is not consistent or unified, and that it is a "complex intellectual structure" shaped by many forces. However, they also assert that modern just-war theories are the direct heirs of a moral tradition begun by St. Augustine. That this is partially true is undeniable. On the other hand, the emphasis on a direct intellectual tradition reinforces the idea, more wittingly than not, that there is an often-listed, age-old just-war canon, especially concerning the issue of noncombatant immunity. Unfortunately, scholars who make this inference empty the just-war tradition of its true complexity and do not sufficiently acknowledge an alternative view: there is no single, coherent just-war position. Rather, there are clusters of ideas that have waxed and waned through time, and they have not evolved into a transhistorical system of simple moral rules. That this is point is not sufficiently stressed becomes immediately clear in the scholarly treatment of St. Augustine.

 Those who focus on the Bishop of Hippo's attempts to reconcile his Christian faith with a justification of war, do not often note just how alien Augustine can be from contemporary standards of morality, especially when it comes to the concept of noncombatant immunity. In fact, immunity is a moot point in St. Augustine's punitive conception of war. Augustine does not stress individual rights, the evils of physical destruction, and the necessary creation of rules for right conduct. He minimizes these issues because in his mind death or physical harm are not preeminent evils of war. For the children of Adam, death in particular is a mere physical rather than a moral evil. Given such a belief, the Bishop of Hippo's vision of war is inherently dualistic. He basically focuses on internal dispositions and attitudes rather than on external behaviors. Disordered passions, to include revengeful cruelty and lust for power, are what wars should correct. As dispassionately as possible, the soldier tries to punish his opponent, reestablish right order, and prevent further wrongs. War, because it destroys disordered passions, thus becomes a generalized act of charity. It is an act of mercy, however, which assumes that individual and social morality are virtually the same. As a result, there is in Augustine a kind of agnosticism about what people do and suffer in war, and there is an expanded notion of war guilt that can potentially include whole populations. That this vision of warfare is alien to modern concepts of noncombatant immunity is obvious and clearly illustrates that just-war thinking is fractured and even contradictory. By stressing Augustine's role in a continuum, there are those who do not properly acknowledge that the idea of collective guilt lurks in one major strain of "the" just-war tradition, and that this idea took root in Allied airmen responsible for the Combined Bomber Offensive against Germany.

 Late medieval thinking on noncombatant immunity is also more complicated than it first appears. Thomas Aquinas, for example, does invoke Exodus 23:7 to prohibit the killing of innocents. He does not, however, specifically apply this dictum to war, nor does he make it completely clear that an innocent person is by definition a noncombatant. There is a rough approximation between the two at best. Aquinas further believes that the good of the state is preeminent among human goods. It is proper to kill dispassionately for the common good and it is appropriate to hold individuals culpable for voluntary types of ignorance. It is also permissible to enslave POWs and to deprive non-Christians of jus in bello protections in war. Such Thomist principles did not upend the nascent concept of noncombatant immunity, but they certainly complicated matters. The theological tensions inherent in just-war thinking ultimately required a solution, and the solution was secularization. However, practitioners of "the" just war tradition do not stress enough that what the 16th century Salamanca School began, the Reformation concluded: just-war thinking died as a thriving intellectual activity and was absorbed into a new tradition centered on international law. As a result, Michael Howard is uncharacteristically imprecise when he describes the period from 1648 to the first Hague Conference as "the golden age of the jus in bello".1 The latter remained a collection of moral concepts nurtured and sustained in an overarching religious context. As a result, the limitations on war based on legal rights and natural law did not become one-in-the-same.

 If it is wrong to assume that what is legal in war is also what is moral, it is equally dangerous to ignore the intimate Janus-faced relationship that law and morality developed in relation to air warfare. To the action-oriented airmen of the 1920s and 1930s, what was legal and what was moral were frequently synonymous. And if there was any ambiguity in the law, it inevitably appeared in the moral sphere as well. This commingling of law and morality was a critical development because during the interwar years, in the opinion of such eminent international lawyers as J. W. Garner and Sir Hersch Lauterpatch, the state of international law governing strategic bombardment was nothing less than chaotic. (Lauterpatch stated the problem as follows: "If international law is the weakest part of all law, then the law of war is virtually its vanishing point.") The U.S. Army Air Corps relied upon FM 27-10, "Rules of Land Warfare," which provided limited and outdated guidance. As a result, the members of the Air Corps Tactical School's "Bomber Mafia" eventually used M. W. Royse's Aerial Bombardment and the International Regulation of Wars (1928) to justify the doctrine of high altitude precision daylight bombardment. Royse was a legal pragmatist who rightfully argued that there were no rules then in force that applied to air warfare, and thus none that specifically applied to the issue of noncombatant immunity. Royce further felt, as did J. M. Spaight (Air Power and War Rights, 2nd ed. 1933), that the concepts of military necessity and effectiveness obscured the juridical distinctions between combatants and noncombatants during the interwar years. In short, when it came to juridical and moral precepts of air warfare, the interwar period was an era of flux. How airmen reacted to this flux, however, is significantly different than critics like Ronald Schaffer (Wings of Judgment, 1985) claim.

 A basic premise of anti-air power critics is that Guilio Douhet, the seminal air power theorist, introduced a new moral sensibility towards warfare. Since modern war required the resources of an entire nation, Douhet argued, it was absurd to distinguish those citizens who contributed to the war effort from those who did not. Everyone was a combatant and thus culpable. While it may be true that there is a cruel and heartless pragmatism at the center of Douhet's thinking, it is possible to overstate just how unique and influential Douhet's ethical assumptions were. There was certainly nothing new in Douhet's emphasis on total war. Airmen did advocate circumventing an opponent's armies and directly assaulting his vital centers, but the idea that whole nations fought modern wars was common currency. In fact, one can characterize the era of military reform, which spanned from Gerhard von Scharnhorst to J. F. C. Fuller, as an era where military professionals tried to normalize warfare and wrest it back from the control of the unwashed Napoleonic masses. Further, it is wrong to suggest that Douhet's moral nihilism became the norm among air power advocates. In fact, the moral barrier between killing troops and innocent civilians, as airmen understood it at the time, did not collapse. The airmen did operate within what they thought were legal and ethical norms, despite the absence of consensus over applicable laws of air warfare and the just war precepts now embedded within prospective laws. One fundamental assumption was that brevity equaled mercy. According to Douhet, short and total wars were less brutal in the long run than traditional conflicts. To their credit, critics of Douhet acknowledge that his defense of this notion was "somewhat in line" with traditional attitudes, but I do not believe they appreciate just how widespread the idea actually was. Article 29 of the seminal Lieber Code, for example, argues that humanity will suffer less in short, vigorous wars, and that the promise of large-scale suffering may actually act as a deterrent to future aggression. Admiral John Fisher, in turn, spoke for many Edwardian soldiers when he argued that moderation lengthened wars, and thus promoted greater violence. Lastly, there is the example of Ira Eaker, who in a January 11, 19?9 letter to Professor Ronald Schaffer justified the moral character of strategic bombing in World War II as follows: 1) it preserved and protected the just against the criminal (note the Augustinian emphasis here), 2) the civilians supporting their national leadership were equally responsible for the decisions made by that leadership, and 3) the vigorous prosecution of the war prevented an even greater loss of human life.

 Yet, even though the above examples appear to illustrate the actual moral values of a unsettled era, they still do not do the era justice. Rather than illustrate a profound shift in values, for example, paragraph 186 of the Luftwaffe's important service directive L. Dv. 16 (Die Luftkriegfuhrung, 1936), forbade "attacks on cities for the purpose of terrorizing the civilian population." Secondly, to baldly state (as some do) that the U.S. Army's Air Corps Tactical School faculty discarded the concept of noncombatant immunity is too simple. Doctrinal sentiment was hardly monolithic among such disparate and argumentative men. The coterie that did shape America's future strategic air doctrine -- Harold Lee George, Donald Wilson, Robert Webster, Gordon Saville, Haywood Hansell, Laurence Kuter, and Muir Fairchild - - genuinely believed that they had developed a method to destroy carefully selected objects. That there existed a chasm between such a doctrine and the technology to realize it is undeniable, but what is objectionable here: the airmen's mid-Victorian faith in technology or an absence of moral standards vis-`-vis noncombatant immunity? Frankly, Tactical School faculty member Haywood Hansell's targeting of industrial grids seems less representative of "a profound moral shift" than as a pseudo-scientific attempt to rationalize war ultimately, opponents of air warfare need to overstate their case in order to provide a context for their treatment of strategic bombing in World War II. The argument typically goes as follows: compromised by the cruel realities of war, US Army Air Force leaders disingenuously clothed their pragmatic attempts to destroy urban targets in moralistic clothing. There is, however, a fundamental problem with this approach. According to Professor Schaffer, American air leaders prevented themselves from examining the moral implications of strategic bombardment, as it related to noncombatant immunity, by adopting a group psychology that ignored the problem. Critics of strategic bombardment have repeated this argument, connected it to an alleged moral shift that occurred in the interwar years, and suggested that jus in bello precepts were a ready alternative to what transpired. However, as the above discussion has tried to suggest, there is an alternative explanation: American airmen did not think that what they were doing was immoral or inconsistent with traditional morality, as they understood it at the time. As a result, there was no need, in Professor Schaffer's words, for a "collective pattern of psychological defense through avoidance." Instead of a moral departure, there was an imprecise continuity that reflected the substantial moral-legal uncertainties of the time.

 Subsequent to the Second World War, however, members of the humanitarian law community began to work with ethicists to define away the moral/legal uncertainties associated with air power in general, and strategic bombardment in particular. The ethics of military intervention is a case in point. Revisionist scholars now argue that a modern air war must meet six criteria: right authority, just cause, proportionality, good intention, a reasonable hope of success, and the use of military force as a last resort. The last criteria, one can argue, is a recent addition to the rules of air and ground warfare, and largely represents an attempt by antiwar activists to codify the idea that war is always the worst solution to a political problem. Given such an assumption, civilian leaders must explore every option short of air or ground war, which forever recedes into the background as an instrument of last resort. The solution to this problem, one ethicist has argued, is to either eliminate last resort as a moral criteria or to redefine it as "non-hasty resort." The latter term recognizes that air or ground warfare is not a step taken lightly, but it does not by definition suggest that the decision to fight is morally wrong. Unfortunately, by merely focusing on terminology, this solution ignores the true problem surrounding the concept of last resort. As in the case of collateral damage, which has increasingly become the sole responsibility of the airborne attacker, and no longer the shared responsibility of the attacker, defender, and local civilians, the concept of last resort has also been stood on its head, either by well-meaning humanitarians or those cynically intent upon neutralizing the technological superiority of American air power.

 Traditionally, last resort was an obligation imposed on the party who initiated war. Kuwait, in contrast, had no such obligation once it was invaded by Iraq. And yet, there was in 1990 a substantial demand that Kuwait and its allies negotiate with Iraq for an unspecified period of time while the latter continued its brutal occupation of its neighbor. Within this context, those who opposed the use of force manipulated the concept of last resort in order to prevent violence, either from the air or from the ground. In their eyes the concept applied to both parties of a dispute, regardless of who was at fault. Department of Defense (DOD) lawyers, ethicists, and public affairs (PA) officials subsequently failed to challenge or repudiate such revisionism, and it is this type of passivity, which fails to recognize that lawyers, ethicists, and liaison officers are now "combatants" in nonlinear, information-oriented warfare, that makes DOD increasingly vulnerable to a growing number of legal/moral prohibitions against the use of force, especially by American air power. In my opinion, the solution to this problem is obvious. Military lawyers, ethicists, and public affairs officers need to turn outwards as well as inwards. By turning outwards I specifically mean that the philosophy/ethics instructors and curriculum developers at our three military academies, like our JAGs and public affairs officers, must redefine themselves as "combatants" in a postmodern era of information warfare. It is vital that they do not reject this proactive, utilitarian call to arms and merely continue to emphasize traditional pedagogical concerns, i.e. how to teach proper values to overtired students in morally bankrupt times. Since combat now occurs not only in the actual battle zone, but also in other arenas (morality, strategic psyops, international law, and press relations) , the Department of Defense needs knowledgeable and articulate "combatants" who can ensure information dominance in all theses arenas, and thus preserve as many military options for itself as possible. This cannot happen, however, if we merely protest our humanity when fog and friction" occur, or if our ethicists remain fussy academics unconnected to the demands of postmodern warfare. The moral/legal ambiguities of World War II are long gone, military options are under assault through moral/legal means, and the only way we can arrest this development is by educating "combatants" for ethical and legal war.