LAW AND MORALITY AT WAR, by Adil Ahmad Haque, Oxford University Press, 2017, 285pgs., $51.53
It is unfortunate that the moral theory of war is so often referred to as “just war theory.” This label suggests that just wars are real things that could be the subject of a theory – like politics, decisions, or music. In my view, moral theory should aim to identify and analyze the most serious injustices perpetrated in war. Many of these injustices – such as torture, rape, and enslavement – require little theoretical illumination. In contrast, launching indiscriminate attacks and inflicting disproportionate civilian losses are not, one might say, unjust clearly. What makes an attack “indiscriminate”? What makes civilian losses “disproportionate”? These are the sort of questions that moral theory of war should address. Perhaps a better name for the field would be “unjust war theory.” (p. 2)
I beg to differ.
Just wars are real things and subject to a theory reflected in the applicable laws. The “laws of war,” “law of armed conflict” (LOAC), and “international humanitarian law” (IHL), whichever of the interchangeable labels is your preference (I will use IHL), may at times fall short of the intended purpose, may be imprecise in providing exacting guidance or affording vague margins of discretion to what may seem, semantically, to be malleable standards, and may reflect over-permissiveness of conduct incongruous with moral philosophy’s meaning of justice and the nature of the good life (or the good war). But it is reflective of and in no small measure consistent with the realities faced by those who must apply them in the war theater, as opposed to paradigmatically in a classroom amphitheater. The facilitative aspect of IHL, i.e., that which it aims to achieve – whether viewed from a prohibitive lens or a permissive lens – carries the imprimatur of moral acceptability, however imperfect or unsatisfying.
But Adil Ahmad Haque is right in claiming in LAW AND MORALITY AT WAR that there are serious questions demanding our moral reflection on issues related to war and IHL, which should rouse our better angels in conceptualizing how “the law of war should be defended, interpreted, and developed so as to serve combatants by providing them with moral guidance, thereby helping them to conform as closely as possible to their moral obligations.” He is also right in claiming that IHL, as it currently stands, has gaps and ambiguities that permit (or do not categorically forbid) conduct that sits irreconcilably with our moral duties as human beings capable of moral reflection and understanding and our overarching duty during war to inflict no harm on innocent non-combatants (even if collateral loss of innocent lives is permitted under certain circumstances and within certain limits), or to only use such force as is necessary and proportionate in concert with other considerations such as discrimination, distinction, and precaution. To this end, Haque presents an excellent platform from which to examine the lex lata in considering his proposed lex ferenda solutions.
Neither being a moral philosopher, nor having been a warrior or a commanding officer in war with obligations to make life and death decisions under extreme stress with imprecise or incomplete information, I claim not to have seen the sun, readily admitting to being a prisoner in Plato’s Cave, exposed to mere shadows on the walls. By this disclaimer I wish to highlight that in reviewing LAW AND MORALITY AT WAR, I do so from a criminal defense practitioner’s perspective.
Looking at Haque’s critique of aspects of IHL and his views on how it could better (ideally) be defended, interpreted, and developed, reflexively, my starting point was to view the law for what it is, accepting its crystallization within the moral confines from which it emerged, inclusive of which are political considerations. As simplistic as it may be, I ask whether the law as drafted, understood, and applied is sufficiently accessible to those who will rely on it in making real-time decisions in situ. Criminal liability could ensue should these decision-makers act beyond what is prohibited and permitted, which, for better or worse, the law, understandably, does not provide bright lines for all circumstances and where deference to subjectivity is inherent.
And so, when viewing Haque’s suggestions on how the law can be adjusted to meet the moral deficiencies as he sees them, I ask again how realistic and implementable are they in the battlefield, how susceptible to criminal liability will field commanders and soldiers be were they to be saddled with these added morally driven legal obligations, and how feasible are they to being accepted by states and, as Haque aspires, by the International Criminal Court?
Haque’s Overarching Thesis
Attempting to reconcile IHL and morality at war, Haque’s preference for a service view approach is driven by his rejection of the two prevailing just war theories espoused by the conventionalists and revisionists. Here, in part, lies the rub. Aside from his philosophical differences with conventionalists and revisionists and how they interpret various aspects of IHL (a bit too technical to distill in this post), he finds neither view to satisfactorily address the burning issue of recalibrating the law to better serve combatants to morally guide them and make it possible for them to meet their moral obligations with as little or no appreciable effect on their combat duties.
The Conventionalist View
According to the conventionalist view, combatants on all sides, whether just or unjust, are symmetrically a threat to each other, and as such, enjoy equal rights, are equally/morally permitted to use force within the constraints of IHL, and consequently, are also morally equal. Likewise, non-combatants on all sides are considered equal and symmetrically enjoy equal/moral protection. Put differently, opposing combatants are equally – and thus morally – permitted to inflict as much harm on opposing combatants that is necessary and proportionate, including harming non-combatants within the range of acceptable collateral damage. Concomitantly, non-combatants are equally – and thus morally – entitled to protection from all unnecessary or disproportionate harm.
The conventionalist view is best represented in Michael Walzer’s seminal book, Just and Unjust Wars. Walzer arrives at his position that combatants, irrespective of the righteousness/just war, are legally and morally permitted to fight under “the set of articulated norms, customs, professional codes, legal precepts and philosophical principles, and reciprocal arrangements that shape our judgments of military conduct” – referred by him as “the war convention.” As such, any moral principles related to resorting to war – which, intrinsically, are reflected in the body of law governing the use of armed force between states (jus ad bellum) – are, according to Walzer, “logically independent.” Assuming Walzer is right (and I am in his camp), legally and morally permitting combatants to kill opposing combatants allows for greater adherence to the body of law covered by jus in bello – if, pragmatically, the primary purpose of IHL is to foster more humane ways of waging war by placing realistic and acceptable limits on combatants in carrying out their offensive or defensive duties while granting protection to non-combatants, circumstances considered.
The Revisionist View
According to the revisionist view, combatants are morally permitted to kill their opposing combatants only if they are fighting for a just cause. In other words, from a moral perspective the combatants on all sides are not morally equal or symmetric. This means that by considering unjust combatants to have legal equality under IHL, explicitly authorizing them the right to kill just combatants (whom by virtue of the righteous/just war are innocent) is irreconcilable with morality. Nonetheless, revisionists accept the equality in legal treatment afforded to unjust combatants under IHL. Jeff McMahan, the flag bearer of the revisionist view, explains in his seminal book Killing in War that the legal equality among just and unjust combatants rests not in the “deep morality” of war which reflects the moral rights and duties of individuals, but on the humanitarian view of the law of war.
This seemingly consequentialist view recognizes, as IHL does, that if we want combatants to abide by certain rules that make war less inhumane, then all combatants should be equally encouraged to adhere to rules of engagement that reflect IHL. In other words, if unjust combatants (assuming they would acknowledge their status as such) knew that they would be criminally liable for conduct just combatants could legally carry out, then there would be no incentive to prosecute a war within the constraints of IHL. Here morality (deep or otherwise) yields to pragmatism. This is reflected in the Geneva Conventions, which came into place not to put an end to war-making but to make war-making less inhumane. Margaret MacMillan’s WAR (reviewed here) reminds us of the inevitability of the human species waging war in the most imaginative ways and through the most innovative means.
Haque’s Service View
Haque, like the revisionists, recognized that just and unjust combatants are not morally equal. Finding little currency in their seemingly consequentialist views, he approaches IHL as a prohibitive normative system, with rules that should be crafted to “provide a service to moral agents helping them to conform to their moral obligations better than they could on their own.” As he sees it, IHL does not confer a symmetrical legal privilege to combatants with a prescribed license to kill.
Haque also rejects the conventionalist views on just and unjust combatants being legally equal – though he does not suggest that they should enjoy lesser legal protection under IHL or that they should be treated disproportionally to just combatants. While he accepts that IHL should apply to all combatants equally, he searches for an intellectual/philosophical angle to bridge the division between jus in bello, and as McMahan put it, the “deep morality” of war. Thus, considering the constitutive aim of IHL as he sees it, IHL must be correctly viewed for what it is: a prohibitive normative system that “does not grant lawful combatants a symmetrical legal privilege to fight but instead grants lawful combatants a symmetrical legal immunity from criminal prosecution.” In other words, IHL “prohibits states from criminally prosecuting combatants for acts that may violate national law but do not violate international law. In contrast international law does not prohibit states from criminally prosecuting civilians under national law merely for participating directly in hostilities.”
This is the springboard from which Haque launches his moral innovative thinking in justifying his thoughts on where the law ought to be, which, in his view, is somewhat wanting if the aim of IHL is to also provide combatants with rules allowing them better to conform to their moral obligations while also providing maximum protection to civilians, recognizing that collateral damage is an unavoidable fact during war.
Since there is far too much to unpack from Haque’s impressively nuanced positions on the various aspects of IHL, I will limit my review to broadly discussing his take on proportionality.
The proportionality rule under Additional Protocol I of the Geneva Conventions prohibits attacks “which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”1 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, Art. 51(5). Crudely, proportionality is about restricting the loss of civilian life during an attack that is disproportionate to the value of the military advantages expected. The lower the value of the military advantage, the fewer civilians should be harmed collaterally. But as Haque sees it, understandably so, little if anything is offered in the language of this rule to guide the combatant in meeting his moral obligations; the margin of discretion on what is acceptable incidental loss, or what constitutes a concrete and direct military advantage in a particular instance considering the overall events on the ground, is rather wide and malleable.
For Haque, an attack is objectively proportionate “only if it prevents opposing forces from inflicting substantially greater harm on attacking forces or civilians in current and future military operations,” whereas it is epistemically (believed to be) proportionate “only if the attacker reasonably believes – on the basis of decisive epistemic reasons – that the attack will prove objectively proportionate.” In setting out five key elements of the proportionality rule (as he sees them), he views the jus in bello proportionality rule to require a comparison between the “harms inflicted with harms prevented.” As he works through the five key elements and various related issues he sees with identifying proportionality, he settles on a definition or criteria:
Probably Proportionate: An attack may be carried out only if, based on the information reasonably accessible to the attacker, the attack will probably prevent opposing forces from inflicting substantially greater harm on attacking forces and civilians in current or future military operations than the attack will inflict on civilians.
This seems to suggest that a commander should sacrifice the lives of his combatants and civilians whom he is entrusted to protect by not attacking when it appears that by attacking, the incidental harm to opposing civilians may be high. So, for example, if rockets are raining down harming/killing combatants and civilians and damaging military and civilian facilities, a commander should accept the incoming, unless, after conducting the consequentialist balancing test suggested by Haque, a counterattack will probably prevent substantially greater harm. This may be the morally just thing to do, that is, to opt for lesser harm even if by inaction, some avoidable harm will come to your own combatants and civilians and also result in physical damage to military installations and cities (sacrificing military options, combatants, and physical property) – but this seems inconsistent with IHL. Also, query how likely political leaders and the military echelon would subscribe to such views in prosecuting a war, where the objective is to win quickly with as few casualties and costs. Rather utopian.
Arguing that his approach to proportionality should apply symmetrically to all sides (morally permissible when carried out by just combatants, and proportionate when carried out by unjust combatants) is enticing, but how realistic is it in practice?
Haque discounts reality as we know it from watching wars unfold on television in real time. Not all parties to wars abide by the rules. It does not matter what you label the combatant (just or unjust) – those responsible in the field to prosecute a war will do so by taking every conceivable advantage they can under the circumstances. Some will do so while refraining from breaching IHL norms, others will pay no mind to the norms, or at best interpret them in such a way so as to justify the plainly unjustifiable.
War is not a precise science. Perhaps there are good reasons why IHL is articulated as it is in the Geneva Conventions and their Protocols. Not that there is no room for improvement, but there is a certain pragmatism to the Geneva Conventions and their Protocols, which, expectedly, significantly account for how wars are prosecuted as opposed to how we may want them to be prosecuted based on moral or theoretical constructs devoid of the realities (military as well as political) and complexities commanders and combatants face during war.
The richness of LAW AND MORALITY AT WAR and Haque’s impressively reasoned stance on IHL and innovative thinking on how this body of law should be adjusted to better guide combatants in fulfilling their moral obligations as they carry on with their tasks in carrying out war, prevents me from providing in this short post anything other than a broad and perhaps overly general account. Anyone interested in better understanding the complex interplay of law and morality, both of which are interlinked with politics, should set aside some quality time to pour over this thought-provoking book.
Haque presents compelling arguments meriting serious contemplation. His analysis of IHL is sharp and impressive. His moral reasoning is equally persuasive. Yet, I am not convinced that the solutions he presents for the law to conform with combatants’ moral obligations will find much traction, especially when they call upon decision-makers to forgo legitimate targets or curtail the use of force beyond what is understood to be prohibited.
The humanist in me is willing to embrace Haque’s suggested improvements to IHL based on his thesis of the service view – a service IHL, and more directly rules of engagement, should provide to combatants. The realist in me, however, is disinclined to be swept away by the force of his moral arguments, however attractive they appear; decision-makers in the midst of attacking or defending cannot be expected to do anything more or less than what is legally expected of them in carrying out their duties. Requiring them to be moral philosophers (in a sense), weighing their legal obligations on a morality scale, is, in my view, unrealistic.
Even though LAW AND MORALITY AT WAR is not practical for a practitioner’s day-to-day work, even though it is not an effortless read for those of us with little or no background in moral philosophy, and even though many of Haque’s views may not sit well depending your own views on IHL, anyone working on war crimes cases should consider reading it – if for no other reason than to ruminate over how law and morality can coexist considering the overarching aim and purpose of IHL. Here I am reminded of Michael J. Sandel’s sage advice from his outstanding book, Justice:
Plato’s point is that to grasp the meaning of justice and the nature of the good life, we must rise above the prejudices and routines of everyday life. He is right, I think, but only in part. The claims of the cave must be given their due. If moral reflection is dialectical – if it moves us back and forth between the judgments we make in concrete situations and the principles that inform those judgments – it needs opinions and convictions, however partial and untutored, as ground and grist. A philosophy untouched by the shadows on the wall can only yield a sterile utopia.
Adil Ahmad Haque in LAW AND MORALITY AT WAR offers plenty opinions and convictions, but they are far from partial or untutored. They are indeed ground and grist for reflection on how the law can better facilitate morality at war. On a personal note, after reading Walzer’s Just and Unjust Wars and Arguing about War some 25 years ago, I have not given much thought on the just war theory from a moral philosophical perspective. I can’t say that having read Haque I have reason to abandon my views – which, admittedly, have been shaped by Walzer. But he has certainly rekindled my interest, and, in no small measure, has exposed me to the complex issues that moral philosophers wrestle with in reconciling the legal justification with the moral justification of killing. For this I am grateful to Haque.
An Aside: LONE SURVIVOR
As I was reading Haque’s views on distinction (chapter 5), and particularly his proposed rules of engagement (ROE), I kept thinking of Marcus Luttrell, a US Navy Seal, and the moral versus legal choice he and his three comrades were left forced to make, recounted in LONE SURVIVOR (also made into a film, starring Mark Wahlberg).
First let’s see Haque’s ROE.
Don’t shoot anyone unless:
- you believe that he poses an immediate threat to several members of your unit or several civilians;
- you are very confident that he poses an immediate threat to yourself, to another member of your unit, or to a civilian; or
- you are absolutely convinced that he is a combatant, even though he poses no immediate threat to anyone.
At first glance, his proposed ROE seems sound. But here is what Luttrell tells us from first-hand experience:
Our rules of engagement in Afghanistan specified that we could not shoot, kill, or injure unarmed civilians. But what about the unarmed civilian who was a skilled spy for the illegal forces we were trying to remove? What about the entire secret army, diverse, fragmented, and lethal, creeping through the mountains in Afghanistan pretending to be civilians? What about those guys. How about the innocent-looking camel drovers making their way through the mountain passes with enough high explosive strapped to the backs of their beasts to blow up Yankee Stadium? How about those guys?
The truth is, in this kind of terrorist/insurgent warfare, no one can tell who’s a civilian and who’s not. So what’s the point of framing rules that cannot be comprehensively carried out by anyone? Rules that are unworkable, because half the time no one knows who the goddamned enemy is, and by the time you find out, it might be to late to save your own life. Making sense of the ROEs in real-time situations is almost impossible.
Luttrell and three other Navy Seals were sent on a mission to hike up a mountain and locate a very high-value target. Unless the target was about to go on the move, they were to radio in the location with the number of enemy troops “for a direct action force to come on by air and take him down.” Just as they were getting a fix on the target, they came across two men and a kid that looked about fourteen years old. Now what to do? To kill them and thus save the mission, prevent future attacks by this target, and save future lives, or let them go. Those were the only two options since they had no rope to temporarily tie them down until their mission was complete before releasing them.
It came down to a vote with Luttrell casting the decisive vote to let them live. Interestingly, before taking this vote, Luttrell had offered the kid a power bar and was rewarded with a scowl. Could this have been evidence of the kid’s intent to run down the hill (as he did) and inform the target and his 80 to 200 armed men? Luttrell made nothing of this, but I wonder whether under Haque’s ROE, this would have been a potential telltale sign from which Luttrell could discern whether he was “very confident but not absolutely convinced” in informing both his moral and legal obligations.
The decision, as the title suggests, had fatal consequences. Not only were three of the Navy Seals killed, but the Taliban also shot down a US helicopter carrying a Seal rescue team, killing all 16 on board for a total loss of 19 highly trained combatants, not to mention the failure of the mission in killing the target, who would go on to harm and kill combatants and civilians.
Luttrell and his comrades understood that under the circumstances they may have been justified to kill the three Afghans, which, in hindsight, would have saved many more lives, innocent lives. Whether they made the right moral/legal choice I leave to the reader to decide, but here is what Luttrell thinks:
It was the stupidest, most southern-fried, lamebrained decision I ever made in my life. I must have been out of my mind. I had actually cast a vote which I knew could sign our death warrant.
Read the introduction to this Book Review Series.
|↑1||Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, Art. 51(5).|