The Importance Of The Military: A Comprehensive Guide
In our previous discussions, we noted that part of the reason why nations have been remiss in prosecuting those who commit war crimes is that the laws prohibiting certain actions of war such as those against the intentional killing of noncombatants contain so many caveats that it is often impossible for soldiers to determine whether such acts are crimes in particular situations.
The two issues that create the most difficulty in this regard are military necessity and reprisals. In this chapter, we will examine the first of this doctrine
s to determine how they might reasonably be modified so that soldiers acting under orders can distinguish illegal acts from legal ones.
Military Necessity
There is a tension between what the Germans call Kriegsraison, or the logic of war, and Kriegsmanier, or the customs of war. Sometimes this tension is referred to as dialectic between military objectives on one hand and humanitarian principles or the demands of civilization on the other. We have been referring to these opposites as jus in Bello principles and military necessity. Historically, the tension has always yielded to military necessity.
“Military necessity” should not be confused with “necessities of war.” The latter refers in a more general way to the suffering and hardship in both the military and civilian populations that are an inevitable by-product of the resort to force as a means of resolving political issues. In this sense, it is a descriptive expression reflecting an inevitable aspect of using force. “Military necessity.” on the other hand, is a formal term that specifically addresses the tension inherent in attempting to minimize suffering through rules while at the same time employing a method (violence) that necessarily causes suffering.
We previously noted briefly the distinction between the necessities of war and military necessity found in the work of Francisco de Vitoria. Recall that in his discussion of the protection of innocents, Vitoria added the caveat that “it is right, in virtue of collateral circumstances, to slay the innocent. [Otherwise] war could not be waged against even the guilty.
” Hugo Grotius’s formulation of the issue places greater emphasis on the protection of innocents, and he argues that care must be taken to prevent the death of innocents “except for reasons that are weighty and will affect the safety of many.”
More recently, military necessity has been used to justify setting aside or overriding the jus in Bello principles found in the laws of war for the sake of military objectives. In Lieber’s Code, for example, expediency receives considerable emphasis under the rubric of military necessity as a justification for violating the sanctity of innocents. Lieber writes: “Military necessity does not admit of cruelty…and does not include any act of hostility which makes the return to peace unnecessarily difficult.” In every instance where. Lieber addresses the protection of the innocent, however, he includes a caveat:
The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.
The inoffensive individual is as little disturbed in his private relations as the commander of the hostile force can afford to grant in the overruling demand of a vigorous war.
Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war.
These passages-which seem to relegate humanitarian principles to the status of ideals-were influential in the development of subsequent international documents. The Preamble to the 1907 Hague (IV) Convention states that signatories shall abide by “these diminish the evils of war, as far as military requirements permit.”
Even the Nuremberg Principles, formulated by the International provisions, the wording of which has been inspired by the desire of the Law Commission at the request of the United Nations General Assembly, including a similar caveat in its discussion of what constitutes a war crime:
VI(b) War Crimes: Violations of the laws or customs of war which include but are not limited to, murder, ill-treatment or deportation to slave-labor or for any other purpose of the civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or per- sons on the seas, killing of hostages, plunder of public or privation not justified by military necessity.
Property, wanton destruction of cities, towns, or villages, or devastation the absence of any specific criteria for assessing when military necessity might legitimately be invoked, Grotius’s emphatic declaration that “Advantage does not confer the same right as a necessity” might be interpreted as a plea rather than a mandate; and in any case, it is certainly too vague to serve as a practical guide.
Under existing international and national laws the prohibition against harming innocents may be subjectively overridden for military advantage or even military convenience. Moreover, no distinction is made between military necessities in terms of tactical, strategic, or political objectives. Understood this way, military necessity amounts to a claim that certain blatantly immoral acts are justified on no other basis than they might contribute in some way to military objectives.
When this is considered in light of our earlier discussion concerning a soldier’s responsibility- it to obey lawful orders and to disobey unlawful ones, the problem becomes even more profound because almost any action imaginable might on some occasions be lawful based on military necessity.
And as we noted in the last chapter, this makes it virtually impossible for soldiers to know with any surety whether certain orders they might receive are lawful or not. This is inadequate, if the Just War rules, the principle of military necessity must be more precisely Tradition is going to function as a viable set of legally enforceable defined and its relationship to other principles clearly articulated in law.
Our mission, then, is twofold. We must examine the notion of military necessity to determine those conditions where it might pro- vide sufficient justification for overriding certain humanitarian laws. Second, we will want to specify which, if any, jus in Bello principles is indefeasible even in light of military necessity.
Our objective is to mark the boundaries where military necessity may legitimately be invoked with vivid, patently identifiable borders that can serve as guideposts for soldiers and officers who subjectively perceive them- able guidelines must spell out specific, objective criteria for deter- selves to be fighting the battle of Armageddon. These legally enforce- mining when instances of military necessity obtain.
Like: The Responsibility for War Crimes
The most problematic aspect of the tension between military necessity and the just conduct of war, and the one on which we will focus our discussion, is the question of when innocent persons may be killed or endangered to achieve some military objective. This is not simply an examination of when innocents can be endangered under the aegis of double effect. Rather, we will attempt to determine when, if ever, innocents can be intentionally targeted. We know, of course, that innocents often have been intentionally targeted in recent wars.
Iraq’s Saddam Hussein fired long-range missiles at Israel cities in an attempt to disrupt the coalition forces arrayed against him during the Persian Gulf War; “civilian” targets such as waste-treatment plants and water-purification facilities in Baghdad were bombed by members of the United Nations coalition; the U.S. bombed Hanoi to force North Vietnam to negotiate an end to the Vietnam War; Great Britain and Germany engaged in regular bombing attacks against each other’s cities in WWII;
The United States used firebombs against German and Japanese cities in WWII and employed nuclear weapons against Hiroshima and Nagasaki to “break the will of the [Japanese] people;” finally, in 1992, only after the breakup of the Soviet Union, did the President of the Russian Republic, Boris Yeltsin, announce that the Soviet/Russian nuclear missiles would no longer be targeted at American cities.
I will proceed under the assumption that human beings have a prima facie obligation not intended to harm innocent persons. The issue facing us is to determine when, if ever, military objectives or soldierly duties override this obligation. If we can determine the necessary and sufficient conditions for when innocents may intentionally be attacked and perhaps killed based on military necessity, we will have addressed the most problematic and extreme case.
Let us begin, then, with a brief review of who might be considered “innocent” in war, as well as the basis for distinguishing innocents from other categories of persons such as civilians, combatants, and non-combatants.
During wartime, combatants are those who are either directly or indirectly involved in attacking one belligerent nation’s constituents on behalf of another nation or political group. The term “combatants” refers primarily to members of the armed forces but can include certain political leaders who are engaged in planning and carrying out the war effort as well as civilians who are working on behalf of the military.
Shopkeepers, farmers, and other members of what Grotius refers to as the “peaceable population” are not considered combatants, even though they may pay taxes and even approve of the belligerent actions of their government. Any civilians directly involved in the war effort, on the other hand, such as those working in munitions factories or manning radar sites, are considered combatants and are subject to being attacked even though they have not performed any action that might cause them to be considered guilty for having committed some wrong.
Nor can soldiers be considered guilty simply for fighting on behalf of their nation, even if the war itself is an unjust one because (as we concluded in Chapter 6) soldiers are always pre- summed to be shrouded in invincible ignorance as far as just and Bellum is concerned.
Nevertheless, it seems obvious that combatants are subject to attack by opposing combatants. The justification, then, for soldiers intentionally inflicting harm on one another can- not be based on their mutual guilt; it must derive from some other basis.
Likewise, the conventional use of the term “innocent” (i.e. anyone who is not guilty is innocent) is problematic when applied to soldiers because it is generally accepted that there is at least a prima facie obligation not intended to harm innocents. One might argue that if soldiers are not guilty, then they are innocent; and if they are innocent, then they should not be intentionally harmed.
But, of course, it is permissible to harm enemy soldiers intentionally. Thus we must conclude that the prima facie obligation not to harm intentionally those who are innocent (where all those who are not guilty are innocent) is inappropriate when applied to soldiers. We will return to the reasons for this shortly.
But while notions of guilt and innocence do not apply to soldiers carrying out public policy-although such notions might apply to officials formulating such policies-soldiers can be guilty or innocent in terms of the means they use in performing their soldierly duties. For example, soldiers can be guilty of war crimes when they violate the laws governing the means that can legally be employed in warfare.
Nevertheless, neither “guilt” nor “innocent” seems to be a suitable term to use in discussing the combatant-noncombatant distinction. Perhaps if we can determine the justification for combatants intentionally harming one another this will help us distinguish those who are legitimate targets from those who should not be attacked.
Recall from our discussion of Grotius that a state’s right to engage in hostilities is grounded in the fundamental individual right to defend one’s person, one’s property, and one’s family or communal group from unjust predation. (Grotius would argue that this right is derived from the social aspect of human nature; we will simply accept it as a moral truth.) From this individual right of self-defense, it follows that it is permissible for members of communities and states collectively to employ force in self-defense against other groups, and many nations have fixed the responsibility for doing so in the office of the soldier. Soldiers act as agents of their state in exercising the state’s right of self-defense.
Because a state’s right to self-defense is derived from the rights of individual citizens and families, soldiers cannot perform any action on behalf of their state that would be wrong for an individual to perform in his or her defense.
In other words, the principle of self-defense is not unlimited-at a minimum, it is limited by the prohibition against intentionally harming innocent bystanders to protect one. And because it is a defense that is the basis for the violence done in wartime, there is no justification for intentionally harming those who are not involved in attempting to harm others?
With these considerations in mind, it is more appropriate to refer to the distinction between those who may be attacked and those who are protected under the humanitarian laws of war as a distinction between combatant and noncombatant rather than between guilty and innocent.
Furthermore, it is important to note that these are wartime distinctions: the role of combatant comes into existence simultaneously with a state of war.
During peacetime, even professional soldiers are not properly considered combatants because they are not imbued with the authority to act on behalf of their society in inflicting harm on others. A soldier acquires the right to use violence on behalf of the members of his (or her) community only by a political authority; indeed, a soldier must do so for the safety of constituents.
Despite these considerations favoring the use of the terms “combatant” and “noncombatant” in wartime, many commentators, some of whose work we will discuss below, use the term “innocent” to refer specifically to any persons protected from attack under the jus in Bello tradition. Additionally, prisoners of war and “protected persons,” although they represent distinct categories in that they are not considered either combatants or noncombatants under international law, are often referred to as noncombatants or innocents in the literature.
For purposes of our discussion, then, we will only make a single broad distinction: we will use the term “combatant” to refer to those opponents who can justifiably be attacked in wartime, and the terms “innocent” and “noncombatant” interchangeably to refer to all those categories of persons who are protected from attack under international law.
What we will not presume, however, is that all who are not guilty are innocent, because soldiers are both not guilty and still subject to attack. Where special considerations are required, such as in discussions that rely on the particular rights afforded to prisoners of war, I will specify the category of noncombatants under discussion and the relevant rights particular to that group under international law.
Finally, before we tackle military necessity. I want to identify two moral truths or precepts that seem to be at the heart of both Jus ad Bellum and Jus in Bello. I am going to refer to these as moral truths because they seem more specific than moral principles such as “all people deserve respect” and “human suffering ought to be minimized,” and yet they also seem too timeless and universal to be called rules or laws.
Some of the philosophers whose work we have discussed (e.g., Cicero, Aquinas, Grotius) might consider these as either example of natural laws proper, or dispositions derived from natural laws. In any case, I believe that these two humanitarian precepts do identify universal human dispositions, and I will refer
To them as moral truths.
MT, It is wrong to intentionally harm innocent persons.
MT2 One is sometimes obligated to protect innocent persons from harm.
Of course, those who simply violate MT, are not innocent and may be harmed in self-defense or in retribution. The more interesting and problematic case is when MT and MT2 come into conflict, as they do in wartime.
It is useful to understand military examples in terms of a conflict between these two moral truths because enemy soldiers are presumed to be possessed of “invincible ignorance” as far as jus ad Bellum is concerned-that is, even though soldiers know that they are inflicting harm on others, including collateral damage to peaceful members of the civilian population, they always believe that they are justified in so doing.
Therefore, soldiers do not attempt to harm enemy combatants because they believe them to be guilty, but because they believe that enemy combatants must be stopped to protect innocent members of their own community.
Even political leaders order their armed forces to com their own innocent constituents rather than harm others. The usually presumed to be motivated by a desire to protect the very act of declaring a state of war begins a chain of events that are reserve soldiers, and possibly potential conscripts or enlistees, involves changing the status of active duty soldiers, citizens who from innocents or non-combatants to combatants who are subject to attack.
Thus the act of declaring war entails intentionally putting certain innocent members of one’s own community in harm’s way. thereby violating MT, to protect other innocents, conforming to MT,. We will next discuss various versions of military necessity and how they relate to MT and MT2.
Read More: Moral Issues in War