IN BELLO – THE ONLY MORAL WAY TO JUDGE COMBATANTS
This is a paper I wrote as part of my application to go to Northern Illinois State University. I was a Captain in the U.S. military at the time. I applied and was accepted to go back to West Point to teach philosophy. As part of that venture, I was to get my master’s degree in philosophy. Northern Illinois State University accepted me into their program. This article you are about to read was a big part of their decision. Unfortunately, life had different plans and I was blindsided by events I never could have foreseen. We’ll get into that story later.
ABSTRACT
The “moral equality of combatants” (MEC) is a long time tenet behind laws governing war. The MEC states it is morally permissible for combatants on opposing sides to kill each other in times of war because they both agreed to fight and pose a threat to each other. The MEC is a particular point of contention in discussions on ‘laws of war’ because proving it is moral or immoral also factors into how combatants are judged to be just or unjust as well as whether ‘laws of war’ have any base in morality. Jeff McMahan argues the MEC legalizes murder in war and therefore the ‘laws of war’ have no basis in morality and there must be a separate ‘morality of war’. Henry Shue argues ordinary life and war are two far different situations and where in ordinary life MEC would be murder; in war MEC is the morally best law. Both Shue and McMahan agree combatants can be judged just or unjust based on ad bellum considerations. I will argue MEC is the morally best law and in doing so also prove combatants can only be judged just or unjust based on in bello considerations or for unjust in bello objectives known ad bellum.
IN BELLO – THE ONLY MORAL WAY TO JUDGE COMBATANTS
Whether a combatant is just or unjust is not decided by whether the war they will fight is just or unjust for jus ad bellum reasons but by how honorably they wage that war in contact with non- combatants in bello. The base of many arguments for whether a combatant is just or unjust and therefore whether morality exists in any law of war rests on believing the “moral equality of combatants” (MEC) is either moral or immoral. MEC is one of the primary tenets in the Laws of Armed Conflict and allows soldiers fighting a war to kill each other with no repercussion whether moral or legal. This tenet is based on the idea that both sides agreed to fight, both present a threat to each other, and therefore both are justified in killing the other. I will argue my thesis by first examining the arguments of Jeff McMahan and Henry Shue in their chapters “The Morality of War and the Law of War” and “Do We Need a ‘Morality of War’?” in the book Just and Unjust Warriors. McMahan argues there is too great a divergence between the ‘law of war’ and what morality requires for the two to ever be married together. Therefore, a separate ‘morality of war’ is required. His key argument is that MEC legalizes murder. Shue argues that while there is divergence between the ‘law of war’ and what the morality of ordinary life would require; it is because war and ordinary life are themselves extremely different. Therefore, while morality can create a different result in different situations it is still taken into account to create the morally best law and a separate morality of war is unnecessary and ill advised. He argues the “moral equality of combatants” proves morality is of a piece but leads to different laws in different situations; by being the morally best law but different than what ordinary life would require. I will use their arguments as a starting place for my own. I will show the moral equality of combatants is the morally best law and therefore there is no need for a separate morality of war. Furthermore, combatants cannot be judged as just or unjust for ad bellum reasons and therefore are only made unjust if they wage war in spite of known unjust in bello actions and considerations.
I will first explain McMahan’s stance to show he believes the “moral equality of combatants” is immoral and therefore proves the need for a separate ‘morality of war’. McMahan’s argument centers on his belief that in war the practical ‘law of war’ and the often impractical ‘morality of war’ can never be married into a ‘morally best law’. This ‘law of war’ and ‘morality of war’ will often conflict with each other. In McMahan’s words:
“My suggestion, then, is that we distinguish sharply and explicitly between the morality of war and the law of war. The morality of war is not a product of our devising. It is not manipulable; it is what it is. And the rights and immunities it assigns to unjust combatants are quite different from those it assigns to just combatants. But the laws of war are conventions that we design for the purposes of limiting and repairing the breakdown of morality that has led to war, and of mitigating the savagery of war, seeking to bring outcomes that are more rather than less just or morally desirable.”[1]
He further states, in these cases it is the morally right thing to follow the side that demands the greatest prohibition or in essence prevents the most damage. McMahan builds his reasoning on the belief that morality is the same regardless of situation and his argument against the currently accepted ‘moral equality of combatants’.
The ‘moral equality of combatants’ states that combatants are justified in killing other combatants because they pose a threat to each other. Because morality is the same regardless of situation McMahan uses an example from ordinary life and criminal law which I will label the ‘thug v civilian’ example. The civilian is justified by the morality and law of ordinary life to self defense but the thug is not then justified to further attack the civilian because the civilian then poses a threat. McMahan compares this to the law of war and specifically the ‘moral equality of combatants’. Morally a victim has a right to self defense but that does not then mean an attacker is further justified in attack. However, the law of war allows this by allowing unjust combatants to attack just combatants. McMahan states:
“As in the case of an individual who engages in justified self-defence, a combatant who takes up arms in self-defence or in the defence of other innocent people against an unjust threat does nothing to lose his or her moral right not to be attacked or to make himself or herself liable to attack. So principle 1, the moral equality of combatants, cannot be defended by appealing, as Walzer and others do, to the claim that just and unjust combatants alike lose their right not to be attacked by posing a threat to their adversaries.”[2]
Therefore a divergence between morality and law is created which can never be rectified – unless there is a way to punish individual combatants (he compares the individual civilians in the example to individual combatants) who unjustly choose to participate in an unjust war and harm or kill just combatants. Of course, McMahan realizes this is impossible and therefore concludes there must be the two governing principles of the ‘morality of war’ and ‘law of war’ which individual combatants should gauge their actions in jus ad bellum and jus in bello on the prohibition. The ‘morality of ad bellum’ and ‘morality of in bello’ apply equally across leaders and individual combatants because morality simply is and cannot be altered. For practical reasons, jus ad bellum only applies to those individual leaders who can be identified and therefore charged. He chooses not to address jus in bello because of the complexity of the issue and that it does not directly deal with the argument he has made. This assertion that combatants can be deemed unjust for jus ad bellum reasons but his unwillingness to approach the subject of just and unjust combatants for jus in bello reasons presents major issues which I will capitalize on in my argument that combatants can only be judged as just or unjust for known jus in bello reasons.
Having explained McMahan’s argument I will now present Shue’s counter-argument centered on proving while morality remains the same regardless of circumstance, war is a far different situation than ordinary life and therefore morality demands different laws to govern it. Shue attacks McMahan’s argument on three levels: terminology, morality, and usefulness. While Shue agrees with McMahan that morality is of one piece and does not change based on situation; he disagrees with McMahan that the divergence between the ‘morality of ordinary life’ and the ‘law of war’ creates the need for a separate ‘morality of war’ in addition to the ‘law of war’. He shows the large difference between ordinary life and war by using the terminology in McMahan’s own example of the civilian and thug. Simply put, ‘thug v civilian’ contains a situation in ordinary life involving civilians but tries to take the moral conclusions derived from this scenario and use them as a template for what the moral result should be in a wartime situation involving combatants.
Combatants are a specific class of people used for specific situations far different than that of non-combatants or in this case, civilians. Therefore the ‘thug v civilian’ example cannot be used as a template for the interaction between just and unjust combatants in a wartime situation. As shown earlier, the foundation of McMahan’s argument is the ‘moral equality of combatants’ is immoral in that it legalizes murder in war. McMahan makes this point largely by attempting the comparison between his ‘thug v civilian’ example and combatants in war. By showing this comparison cannot be drawn Shue effectively disables McMahan’s argument as McMahan’s key ‘thug v civilian’ example is rendered irrelevant to this situation. Shue states:
“The law of war undoubtedly permits combatants on each side to attack combatants on the other side. So the moral rules for ordinary life forbid muggers from attacking strollers, but the law of war allows combatants on each side to attack combatants on the other side. This of course would simply be the contrast between ordinary life and war from which all the issues arise-this is the problem, not the solution.”[3]
This point will factor into my argument that combatants cannot claim the same rights or innocence that a non-combatant can and therefore their rules in regard to fighting other combatants are far different and cannot make them just or unjust.
Shue then refutes McMahan’s claim that practical legal considerations can cause a divergence between morality and law that cannot be blended; forcing the need for two separate codes of behavior. Shue points out that many of these practical legal considerations are also moral considerations. Taking these wartime moral considerations into account may cause a divergence from one of the moral considerations but it will cause a much better fit in a wartime situation when morality is taken into account as a whole. In essence, saying that even if the ‘moral equality of combatants’ is immoral in the singular morality of legalizing murder between combatants; it could be the ‘morally best law’ when taking practical considerations and their moral counterparts into account. Shue makes his position plain in the quotes below:
“First, this is not actually an example of ‘divergence between law and morality’. It is a divergence between the best law, moral considerations … taken into account, and what morality might otherwise have required if one were not designing a system of general law.”[4]
“If indeed ‘the formulation of the law take[s] account of the likely consequences of its promulgation and attempted enforcement’ in the way morally appropriate for war, moral considerations will have been incorporated in so far as they can be into the law, and we will have in the law the morally best rule for war. If this is a situation in which we need general law, this law ought morally to be obeyed.”[5]
I completely agree with this point in Shue’s argument. The idea that legal considerations are also moral in nature and taking all these considerations into account to create the morally best law factors heavily into my argument later in this paper.
Last, Shue argues that McMahan’s argument is not of much use because its scope is so limited. It may have some affect on those individual combatants who are not sure if they should go to war and on the ferocity of warfare for those who are not sure if their war is just. However, it does very little to guide the majority of combatants engaged in warfare who already believe their cause is just. In Shue’s words:
“One difficulty then, with McMahan’s recommendation always to abide by prohibitions like the prohibition against attacking those who are not morally liable to attack is that it is next to useless as an action-guiding principle for the conduct of war. It would encourage critical reflection and encourage restraint, but it would otherwise be useless to an agent deciding how to fight, even if, per impossible, he or she had the information and opportunity to apply it to individual adversaries.”[6]
On top of this, the idea of having a ‘law of morality’ that could do more harm than good seems immoral in and of itself. Thinking about all moral considerations affecting a situation in an effort to create the morally best laws is useful and creates greater law and order. Having a separate ‘law of morality’ which is not used to create the morally best laws but rather demands individuals disobey the law in favor of the greater moral prohibition brings about chaos and anarchy. A law which is so morally inadequate, that individuals are constantly compelled to disobey it, is worthless. Either that law is not morally best and needs to be changed or it shouldn’t be a law at all. A morally best law will not create conflict between the law and what morality requires.
Having explained McMahan’s argument and Shue’s counter-argument I will now examine both and describe the observations I am left with before beginning my own argument. I agree with both McMahan and Shue that morality is of a piece and remains constant regardless of the situation. However, I disagree with McMahan that a law diverging from what one moral issue would require makes law and morality separate entities. I agree with Shue that other considerations which seem to cause a divergence between law and morality are themselves moral issues. Therefore, it is not just important but vital to take all moral issues together into consideration to create the morally best law. Once the best moral law is found; to diverge from it in order to bring the law closer to what a single moral issue may require would in fact be immoral because it creates even greater divergence from other important moral issues such as the life of the victim, the mistaken punishment of POW’s thought to be unjust, or the sanctioned killing of innocents to bring about a quicker end to a war[7].
In the discussion over whether the ‘moral equality of combatants’ is immoral or the morally best law I think it is important to show that not only is morality of a piece but it is also pervasive in the present Laws of Armed Conflict (LOAC), as wrong or right as some of those present laws might be. I agree with Shue that consideration of all involved moral issues instead of just one creates morality in law. However, I disagree that the difference between war and ordinary life means there must be a great divergence between the morality of ordinary life and the law of war. I think both authors are looking at the morality of ordinary life from the wrong viewpoint as it is almost solely focused on arguing against or for the ‘moral equality of combatants’. Everyone with even the most basic moral code can agree acts such as rape, murdering an innocent, stealing, and causing unnecessary suffering are actions that are wholly unacceptable regardless of situation. The present LOAC rightfully outlaws these universally identified transgressions. The fact that the current LOAC addresses these acts shows morality can and is being treated as a piece both in ordinary life and war; even if there are some rules in the LOAC which can be examined and altered to create the ‘morally best law’.
Another connection between ordinary life and the law of war rests in McMahan and Shue’s agreement that combatants cannot be tried because in a mass of combatants individuals cannot be identified. This simply isn’t true. Even criminal law doesn’t attempt to prosecute a group of people where no individuals can be identified because to do so would risk unjustly prosecuting an innocent person. However, this does not mean that in those cases where individuals can be identified they are not prosecuted simply because they were part of a group. Even history bears precedence to the fact. After World War II the Nuremburg trials brought many Nazi’s to justice, from major political leaders to lower echelon Nazi Officers. Just as in law within ordinary life someone cannot be prosecuted for simply being part of a group but they can and are prosecuted both within ordinary life and in war if there is proof they committed a crime.
Having shown the present LOAC’s foundation is based in morality ,the same as those laws governing ordinary life, the question still remains how this morality factors into the seemingly immoral ‘moral equality of combatants’; especially since McMahan argues this rule within the law of war legalizes the act of murdering an innocent. To argue the ‘moral equality of combatants’ bears moral justification I will demonstrate there is normally more than one moral issue to consider in a situation, combatants cannot expect the same right to life or innocence as a non-combatant, and the failure of the ‘thug v civilian’ example as McMahan uses it. Shue answers most of this question arguing that war is so different from ordinary life, the laws morality demands in ordinary life are not a perfect template for the laws in war. War is much more complicated than ordinary life, requiring a greater number of considerations be taken into account to create a law of war. I agree with Shue that these considerations are not simply legal considerations, as McMahan claims, but they are moral as well. When the considerations in question are how to prevent greater harm to an innocent or prevent a greater number of non-combatants from dying than otherwise would have they are most certainly moral in nature. The seeming divergence between morality in ordinary life and the ‘law of war’ is caused by the need to consider the greater number of moral considerations found in the chaos of war compared to the relative few found in ordinary life, to create the morally best law.
Taking this argument further, even if you believe a combatant can be just or unjust merely for jus ad bellum reasons you cannot possibly say a just combatant has the same expectation for life as a non-combatant. There are two types of combatants: those who willingly join and those who are forced to join. I will address both. McMahan is right when he says combatants have not agreed to die. If combatants had agreed to die they would not fight back but would allow themselves to be killed. On the contrary, they fight back because they want to live. However, those who willingly became combatants accepted the danger involved in war. They know that while they are part of the military their purpose in life during war is to put themselves in harms’ way for the protection of their homes and the interests of their nation. As such, even if they are ‘just combatants’ killed by ‘unjust combatants’ there is no moral wrong because those ‘just combatants’ accepted the possibility of that danger and death. In essence, a combatant has given up the innocence and expectation of life that ordinary life gives to civilians and the LOAC gives to non-combatants. A non-combatant has not accepted the possibility of any sort of danger. Therefore, if a combatant actively targets and kills a non-combatant that combatant is unjust but if one combatant kills another, in war, it is justified.
The case of a combatant who is forced to fight follows a different line of reasoning but arrives at the same conclusion. In the case of a combatant coerced into fighting an unjust war, perhaps the morally right thing to do is refuse to fight. However, any unjust nation that coerces an unwilling populace to fight will likely kill them if they refuse. This does not change what the morally correct action is but it does excuse this combatant from any fault stemming from going to war, as long as that war is focused on killing other combatants and not non-combatants. The guilt for the death of these coerced unjust combatants and the deaths of the just combatants would be assigned to those who coerced the combatants to fight, and not to the coerced combatants themselves. As I showed above the just combatants who the coerced combatants may kill have no claim to the innocence of the non-combatant because of their chosen profession. Without this innocence and therefore expectation of safety and life there is no moral wrong when combatants kill combatants. This argument is why I made the clear distinction of saying ‘murder of an innocent’ when describing those acts which violated the basic tenets of morality. Innocent in this situation is interchangeable with non- combatant and I believe innocents and combatants, whether just or unjust, cannot be characterized as being in the same group.
The above argument demonstrated the moral considerations behind the ‘moral equality of combatants’ by forming a link between it and the morality of ordinary life as well as proving there is no moral wrong in combatants killing combatants. I will now demonstrate why the ‘thug v civilian’ example does nothing to support McMahan’s conclusions and in fact leads to much deeper issues in the ideas of jus ad bellum and jus in bello. McMahan falls short in his use of the ‘thug v civilian’ example because he tries to use it as an exact template for combatants fighting combatants in war; down to comparing the individual civilian to the individual combatant. Shue falls short in his argument because he stops at simply showing the ‘thug v civilian’ example cannot be a template instead of looking at the deeper ramifications the example presents. The ‘thug v civilian’ example is supposed to explain the divergence between the morality of ordinary life and the ‘moral equality of combatants’. McMahan directly compares a single civilian and a single thug to the individual just combatant and the individual unjust combatant. Shue argues ‘thug v civilian’ is a poor example because it uses civilians and war has combatants and the two cannot be compared. Furthermore, an individual civilian and an individual thug can be identified whereas a mass of soldiers who may or may not be able to see each other cannot be similarly identified and therefore cannot be considered in the same way. In any case, as I will show below Shue does not take his argument against the ‘thug v civilian’ example far enough.
The problem with the ‘thug v civilian’ example runs much deeper. I believe a better comparison equates the thug and civilian to the governments of two different nations and combatants to whatever weapon the thug uses to attack and the civilian uses for defense. I am not arguing that soldiers are automatons who cannot think for themselves but, due to issues mentioned by both authors, the combatants will only have partial information leading to ill informed and incomplete conclusions as to whether the war in question is just or unjust. While there will be greater clarity as to what is just or unjust in the rules used to fight a war,; the individual combatants decision to go to war is usually clouded by propaganda, lack of time to research, patriotism, or one of many other reasons.
The world is and always has been more complicated than what the average person can see or find. Governments do not often disclose all the reasons or considerations for going to war and if a government does not want information disclosed it will be very difficult to find. It may be argued that in today’s world with the internet and infamous sites like ‘WikiLeaks’ everyone with a computer has access to all the information they could need to make an informed decision. However, the content of the internet is also created by anyone with a computer. This ability to download and upload by anyone with a computer degrades the credibility of much of the information and the sheer volume, whether correct or not, will often cloud rather than clarify what is actually happening. The best the inquiring mind can hope for, even with the power of the internet, is to make a good guess as whether his government is acting justly or unjustly. Conversely, the civilian and thug have full realization of the situation at hand and therefore can make appropriate decisions as to what is just or unjust the same as the governments of nations. Dan Zupan also makes an interesting point that citizens enter into contract with their government, in part, to provide for their protection.[8] Therefore, it should be the governments of nations that bear the full responsibility for ad bellum justice or injustice as they are the only ones who have full knowledge of the situation. A combatant who refuses to fight for the protection he agreed to by contract with his government must have solid evidence that the war he is ordered to fight is in fact unjust based off of the transgressions clear to any moral person.
Having proven the ‘thug v civilian’ analogy is a poor example for comparing individual civilians to individual combatants and their decisions pertaining to combat whether ad bellum or in bello, I present my own analogy. To equate an individual combatants’ mistaken decision to go to war for what he believes are just reasons to an example in ordinary life, the example of involuntary man slaughter is more appropriate than the “thug v civilian” example used by McMahan. Both Shue and McMahan admit that most combatants, whether just or unjust, believe their cause is just. Therefore, I present the following example. A civilian with a family hears a loud noise on his property and to protect his family goes outside with a shotgun to see what it is. Upon reaching his front porch he hears something about “killing” and a loud clang at which point he aims his shotgun in the direction of the noise and pulls the trigger. A few hours later it is discovered that he actually shot his drunken neighbor on the street in front of his house. This neighbor had just been arguing with his wife and punched the man’s mailbox right before he was shot. The man in question did kill his neighbor but only because he thought ‘it’ was a threat to his family. Ignorance does not absolve him of all guilt but he would likely be judged on the count of ‘involuntary man slaughter’ and receive a penalty far short of that for murder. This does not mean his actions are justified as he did kill an innocent man. However, the fact that he would likely be punished for something far short of murder proves his actions are excused. The civilian likely could have walked closer to his mailbox to get a clearer picture of the situation to make sure of danger or safety before discharging his weapon but he will also likely be excused of murder. A combatant cannot so easily, if at all, discern all the complex reasons his government is sending him to war and therefore whether the war ad bellum is just or unjust. Keeping this in mind, a soldier who mistakenly fights in an unjust war and kills other combatants as well as unintentionally killing non-combatants due to an incomplete picture bears even less responsibility for any unjust deaths which occur as well as a greater right to excusal from the charge of murder than the civilian in my example.
I believe most combatants have their view of ad bellum considerations actively clouded by other agencies and those that do not will almost always claim they did. Those that admit to knowingly fighting in an unjust war are also admitting to actions which led to the death of innocents for unjust reasons. These cases simplify matters considerably because it is easy to prosecute those who actively engage in immoral and unlawful acts. Those combatants with actively clouded perceptions have even less control of finding the truth of the matter than the man in the example and therefore bear even less blame for fighting in an unjust war than the man had for committing involuntary man slaughter. Therefore, if blame is assigned to this combatant for mistakenly fighting in an unjust war and killing just combatants or committing actions which lead to the unintentional deaths of innocents it should be so small as to be inconsequential. The above argument in itself explains moral reasoning behind the ‘moral equality of combatants’ for the individual combatant and provides another connection between the law of war and criminal law within ordinary life. This justification for the moral equality of combatants largely erodes the base of McMahan’s argument that its divergence from morality creates a need for a separate ‘morality of war’ and that morality and law within war cannot be married sufficiently. It also provides a better explanation than Shue’s argument because it ascribes a moral reason to why the ‘moral equality of combatants’ is in fact a rule which takes many moral issues into account as opposed to simply being ‘necessary’ because a mass of combatants cannot be broken down into the individual combatant who may be just or unjust. For those few cases listed later in this paper where ad bellum is known to be unjust by individual combatants, because of known unjust in bello objectives, they should be tried the same as their governments where individuals among the mass of combatants can be identified.
I have now fully shown that the ‘moral equality of combatants’ is not only moral but is the morally best law and therefore a separate morality of war is wholly unnecessary. In the course of that argument I showed combatants cannot be made just or unjust by killing other combatants because within the confines of combat they all accepted the possible outcomes of their chosen profession or they were forced to fight. This line of reasoning led into my thesis that combatants can only be judged just or unjust for their actions in bello or for a decision to wage an unjust war despite known unjust in bello objectives. I continue by addressing McMahan’s counter argument to government being solely responsible for unjust ad bellum decisions. In his work “On the Moral Equality of Combatants” Jeff McMahan attacks the idea that governments are solely responsible for jus ad bellum considerations and therefore justifies the ‘moral equality of combatants’. McMahan believes that while combatants often believe their cause is just based off the information at hand; sometimes it is obvious the ad bellum reasons for going to war are unjust.[9] To him this proves the moral equality of combatants is immoral as an unjust combatant could never be morally justified in killing a just combatant. There are several issues with McMahan’s argument denying ad bellum considerations to be the sole responsibility of the government. The first is, McMahan’s argument is based on the idea some people might know a war to be unjust for ad bellum reasons. It is unreasonable and totally impractical to make a rule or judgment of any sort on the possibility a combatant at some time could somehow in some way gain access to all the reasons behind going to a war and make a well informed decision. However, McMahan and Shue admit it can be proven to a reasonable level that most combatants believe their cause to be just. As I showed above even if their belief is mistaken they are still excused from judgment for immoral action as long as they only intentionally target combatants. The second issue with his argument is, whether or not a combatant knows the war to be unjust ad bellum has no sway over the argument for the ‘moral equality of combatants’. I have already shown and I believe Shue would agree that combatants and civilians do not share the same category of innocence and therefore combatants whether just or unjust cannot possess the same expectation to life. Therefore, regardless of the reasons someone goes to war or what they do in the course of the war they still have the same right as any other combatant to kill combatants. Therefore, McMahan’s argument against governments being solely responsible for jus ad bellum considerations is incorrect.
It is clear governments are responsible for jus ad bellum considerations and if a combatant chooses to fight in an unjust war it is almost always by mistake. Now I will argue why the individual combatant cannot be held responsible for mistaken ad bellum decisions to fight in an unjust war by making an appeal to human capability and showing examples from history. McMahan and Shue both seem to agree moral blame can be assigned to those who base their ad bellum decisions on what they thought were facts at the time but turned out to be falsehoods. I completely disagree – if everyone had perfect foresight, moral people would make the right decision. Unfortunately, perfect foresight is not a human capability. Making reasoned conclusions off of the available evidence is. Therefore, it makes no sense to hold an individual responsible for a mistaken decision made off the information available at the time, simply because the complete picture later comes to light. It is only once an individual makes an immoral decision after information with immoral implications comes to light that they should be held responsible. For example, at the beginning of WWII many German soldiers believed they were defending their country against Polish attack due to an elaborate border ruse staged by Hitler.[10] Most German soldiers did not know of the genocide being carried out by their leaders and the SS at the beginning of the war. However, within a relatively short time most would come in contact w/ death camps, experience the extermination of “undesirables”, and other actions proving unjust in bello actions. Most German Soldiers did not know the nature of their war when it started and therefore were not unjust in going to war as they believed the “Fatherland” needed protection from an invading Poland. However, at the point they saw unjust in bello actions and continued to fight, that is when they became unjust combatants. Some people may argue there is no way the German Soldier thought WWII was just, due to the German government propaganda arguing for “Lebensraum” and racial purity. Even in the face of this propaganda, any patriot of any nation who believes his nation is under attack will fight to protect his homeland. At the outset of the war, the driving force behind the majority of German Soldiers was protecting the “Fatherland” and not “Lebensraum” or racial purity. On the other hand, Hitler and his leadership, knowing full well the objectives and reasons behind the war, were unjust from the war’s inception for jus ad bellum reasons and in the course of the war for jus in bello reasons.
Having explained why governments and not combatants are responsible for jus ad bellum considerations I will prove why combatants are only responsible for how they fight the war in bello and for unjust in bello objectives known ad bellum. The one area individual combatants have full knowledge of all the issues needed to make a well informed decision on whether a war is just or unjust is in bello. Occasionally these jus in bello considerations may give a combatant full reason to refuse war ad bellum. In cases like the Serbo-Croatian war or the Somali Conflict, where before the war even begins, genocide is the known tactical plan and primary objective; individual combatants should refuse to fight ad bellum. They should refuse; not because they may be killing just combatants but because they will be purposefully killing non-combatants. It is only with jus in bello considerations, seeing or having knowledge of the action which will occur on the ground, that a combatant will have a clear picture of what is a just or unjust war based off of those previously discussed actions that are universally accepted as transgressions. The issue of whether it is permissible for combatants to kill combatants is not the main issue behind someone justly or unjustly going to war or waging war. The main issue is that war is chaos and no matter how just you are it brings pain and suffering. There is no war in the history of mankind in which innocents were not killed or hurt whether as a direct result of a battle or because of liberties taken by the armies involved. Therefore, a combatant who decides not to fight in an unjust war for jus in bello reasons or to stop fighting in an unjust war for jus in bello reasons should do so not because it might be unjust to kill a just combatant but because it is undeniably unjust to commit an action which leads to the death of an innocent for unjust reasons.
In the course of my argument I made several key points to prove the validity of my thesis. The ‘moral equality of combatants’ is moral and the morally best law. Combatants are not in the same group as non-combatants and therefore when dealing with other combatants cannot expect the same safety or expectation of life that a non-combatant can. There is no need for a separate’ law of morality’ as a morally best law will take all moral considerations into account regardless of situation. As the governments of nations are the only entities that can be reasonably expected to know the full details of decisions to go to war; they also bear full responsibility for jus ad bellum considerations. These key points combine to prove my thesis. Combatants are just or unjust based on immoral acts committed in bello or for going to war when the in bello objectives are known to be unjust ad bellum.
In closing, while the LOAC does not show a divergence from morality there are areas which need review and refinement to create the morally best law of war. This has nothing to do with the LOAC being moral or immoral but is merely a product of the passage of time. As long as humans create different, new, or more destructive ways of fighting and killing each other there will be a need to review the LOAC consistently as every change brings new moral considerations or changes the order in which moral considerations must be weighed. At its heart the second law of thermodynamics states that everything tends to move from a state of order to disorder unless actively manipulated to create or maintain that order. This applies to us as individuals, the upkeep of our homes, and everything else including the LOAC. If entities and things are not actively kept up to standard or driven toward improvement they will go from being or creating order to being or creating disorder. There must be an international committee built to ensure the LOAC is constantly improved to create the morally best laws regardless of changes that affect war, why nations go to war, or how war is conducted.
[1] McMahan, Jeff, ‘The Morality of War and the Law of War’; David Rodin and Henry Shue Just and Unjust Warriors p. 35 (Oxford University Press, 2008).
[2] Ibid, p. 22
[3] Shue, Henry, ‘Do We Need a ‘Morality of War’?’; David Rodin and Henry Shue Just and Unjust Warriors p. 102 (Oxford University Press, 2008).
[4] Ibid, p. 92
[5] Ibid, p. 94
[6] Shue, Henry, ‘Do We Need a ‘Morality of War’?’; David Rodin and Henry Shue Just and Unjust Warriors p. 108 (Oxford University Press, 2008).
[7] McMahan, Jeff, ‘The Morality of War and the Law of War’; David Rodin and Henry Shue Just and Unjust Warriors p. 22 (Oxford University Press, 2008).
[8] David Rodin and Henry Shue Just and Unjust Warriors p. 14 (Oxford University Press, 2008).
[9] McMahan, Jeff, “On the Moral Equality of Combatants”; The Journal of Political Philosophy: Volume 14, Number 4, 2006, pp. 389 – 391
[10] Constable, George, “The Reach for Empire”; The Third Reich, 1989, pp. 147, 149
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