Abstract
Some contemporary Just War theorists, like Jeff McMahan, have recently built upon an individual right of self-defense to articulate moral rules of war that are at odds with commonly accepted views. For instance, they argue that in principle combatants who fight on the unjust side ought to be liable to punishment on that basis alone. Also, they reject the conclusion that combatants fighting on both sides are morally equal. In this paper, I argue that these theorists overextend their self-defense analysis when it comes to the punishment of unjust combatants, and I show how in an important sense just and unjust combatants are morally equal. I contend that the individualistic and quid pro quo perspective of the self-defense analysis fails to consider properly how the international community, morally speaking, ought to treat combatants, and I set forth four elements of justice applicable to war, which, together, support the conclusion that in principle the international community should not take on the activity of punishing combatants solely for fighting on the unjust side.
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Notes
In Killing in War, McMahan states, “Thus, for example, killing in self-defense is justified not when killing the attacker would be the lesser evil than allowing the potential victim to be killed, but when the attacker has acted in such a way that makes him morally liable to defensive violence. The strategy of argument—the methodology—in this book is to extend this form of justification from these areas in which it is familiar and well understood to the context of war”. McMahan (2009, p. 57). See also, Rodin (2007, 2008) and McPherson (2004).
In this paper, I set aside whether state leaders, who plan, prepare, initiate or execute an act of aggression, could be prosecuted for the “crime of aggression”. Thus, in this paper, I distinguish “combatants” from “state leaders”, and I restrict my analysis to combatants.
For doubts concerning the moral foundation of the current international legal right of State self-defense, see Rodin (2002).
But see Fletcher (2009), for the rejection of the applicability of justice to acts in war. On p. 408, as part of his thesis, Fletcher states, “justice is not an appropriate consideration in the law of war”.
For further reading on the historical and philosophical issues concerning the widely held belief commonly referred to as “the moral equality of soldiers”, see Rodin and Shue (2008b).
See Alexander (1985, p. 100), for the additional claim that if the person responsible for the attack is not actually engaged in the attack, but killing that person will stop the attack, then one should kill that responsible person rather than the person engaged in the attack.
See Leviathan, beginning of Chapter 15 and the beginning of Chapter 28. At the start of Chapter 28, Hobbes defines punishment as follows, “A punishment, is an Evil inflicted by publique Authority, on him that hath done, or omitted that which is Judged by the same Authority to be a Transgression of the Law”. Hobbes (1996, pp. 100 and 214).
See Locke (2000, §§ 7–8, 13, 16–21, 27, 87–91, and 123–131).
Some, of course, might claim that punitive damages awarded in a civil action are punishment. But see, Coleman and Murphy (1984, p. 207, n. 4).
The criminal and civil law, of course, have this complexity and element of fairness, including rules of civil procedure and reliance on precedent, in common. As a result, in important ways they both can be seen as activities of the state. The point here is not to distinguish the criminal from civil law but to articulate an important reason why the criminal law is properly viewed as an activity of the state. Those involved in civil litigation may also at times believe that it is the laws of the state (not their actions or the actions of the other party) that induce, constrain or facilitate the outcome of that civil suit.
While there are many others, some consider the following to be “victimless” crimes: seatbelt laws, laws prohibiting the possession and use of marijuana, and laws prohibiting two adults from engaging in sexual intercourse for a fee.
I also do not claim here that these elements of justice are exhaustive.
See Mill (1998, p. 92), who, of course, thinks this is why the public ought not to interfere with purely personal conduct. His reasoning can be extended somewhat to why the international community ought to be careful when interfering with the workings of states. Similarly, like the “presumptive case for liberty” in a liberal domestic society, there is a presumptive case for non-intervention by the international community into the affairs of states. For this presumptive case for liberty in the domestic sphere, see Feinberg (1973, pp. 20–22).
In such a case the intervening state is much like a third party who may come to the defense of those citizens, who are victims of their own state, which is thus an aggressor.
See Rotberg and Thompson (2000).
McMahan (2009, pp. 190–191) offers two related points on this issue. First, the threat of punishment for fighting on the unjust side could also discourage the just from fighting against the unjust, for fear that they might mistakenly be subject to punishment if their side loses the war, and second, it may be that those who are considered unjust combatants during a war may be more likely to engage in war crimes or atrocities, if doing so would increase their chance of victory, which would help them avoid punishment. Similarly, it may be thought that a person who is already breaking international law and thus already liable to punishment would have less incentive to adhere to other international laws pertaining to armed conflict, especially if doing so does appears not to be in their best interest.
But, even if one disagreed that moral luck could let them “off the hook” fully, by itself, moral luck and its concerns can still be combined with the other elements of justice stated in this paper to form a good moral case against punishing unjust combatants.
“Moral luck” then as I utilize it here is not a justification for action nor is it an excuse. Rather, it is an acknowledgement and realization that carries normative force in forming an appropriate response to acts and circumstances.
As Upton Sinclair wrote, “It is difficult to get a man to understand something when his salary depends on his not understanding it” (1994, p. 109). Imagine further that it is not only one’s salary at stake but their identity. When one sees combatants discuss their decisions to become conscious objectors, one sees a person struggling with their identity. For interviews of soldiers, who have recently become conscious objectors, see the documentary by Weimberg and Ryan (2007). Treating patriotism as a virtue is a common phenomenon. For many, the morality of patriotism is as Alasdair MacIntyre describes. People believe that it is their community that sets for them the moral terms to live by and one’s “allegiance to the community and what it requires…even…to die and sustain its life—could not meaningfully be contrasted with or counter posed to what morality required” of them, see MacIntyre (1984, p. 11).
William Shakespeare, Henry V, act 4, scene 3.
Similarly, this issue exists in domestic courts with those who are homeless or recluse or indigent clients, and it exists more generally with regard to prosecuting minor players for international crimes, who because of their “minor role” may not receive the attention and proper scrutiny of officials or observers. For a good discussion of prosecuting “minor players” for Crimes Against Humanity, see May (2005, Chapter 7).
This randomness and charge of “kangaroo courts” are, of course, criticisms that are lodged against international criminal courts more generally. I believe these criticisms would be exacerbated and given moral weight if the international community created a law that prohibits one from being an unjust combatant. These criticisms will have force because this exacerbation leads to more possibilities for valid claims of unfairness that directly reflects onto the international community’s standards that it adheres to and the actions that it takes.
See Walzer (2000). On p. 43, Walzer reminds us that “war is a social creation”, and on p. 45, he states that in his book he is looking to articulate “those particular judgments that both reflect the war convention and constitute its vital force”. This “war convention”, for Walzer, of course, precedes historically and from a collectivist perspective, which acknowledges “war as a rule governed activity” and essential for this activity is an “equal right to kill” (p. 41). For an interesting history of “a regular war” distinguished from “a just war” (the former acknowledging the moral equality of soldiers), see Reichberg (2008).
Rodin and Shue (2008a, p. 3).
See Zohar (1993). According to Zohar, the partial descriptive adequacy of the individualistic and collectivist perspectives leads to moral rules for war that are derived from “a moral compromise” between these two perspectives.
See Lichtenberg (2008), for a further good discussion on why it is that we should treat just and unjust combatants as morally equal.
While we do think that people are at fault for their actions, e.g. fighting on the unjust side, and at fault for the actions of the group, most also think, in conjunction with that fault, that acts of war (or the entire event of war, overall) result from a kind of contributory group fault that is to be assigned to the collective and not distributed to its members, see Feinberg (1970, pp. 248–251).
I most likely would wish them to be restrained so that they cannot harm others in the future. For some, this might not be considered punishment, for I would not wish to harm them because they committed some harm. Still, for others, this restraint might be considered a burden and thus punishment.
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Acknowledgments
I am very grateful for conversations I had with Jeff McMahan whose writings and thoughts inspired the ideas for this paper. Also, I am grateful for conversations I had on drafts of this paper with Kareem Khalifa. This paper was greatly improved by comments on drafts by Larry May and Joanna Kyriakakis. In addition, I am thankful to the participants who commented on a presentation of the ideas in this paper at the 24th IVR World Congress in Beijing, China.
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Viner, S. Self-Defense, Punishing Unjust Combatants and Justice in War. Criminal Law, Philosophy 4, 297–319 (2010). https://doi.org/10.1007/s11572-010-9102-9
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DOI: https://doi.org/10.1007/s11572-010-9102-9