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War Crimes and Just War.

Article Excerpt
[Review Essay: Larry May, War Crimes and Just War (Cambridge: Cambridge University Press, 2007), xi + 343 pp.]

Introduction

War Crimes and Just War is the second book of Larry May's trilogy of volumes on the normative foundations of international criminal law. (1) Since the book is rich and complex, properly addressing all (or even most) of its main points would require an entire series of essays. Instead, I will focus here on May's central innovative thesis regarding morality in warfare, namely, the foundational role he accords to the principle of humane treatment. My purpose is to offer a critical assessment of this thesis and of its striking implications for what soldiers should and should not do. In order to do so, I will first describe the recent emergence of a crucial moral challenge to the accepted "war convention," and engage some of the responses to this challenge--responses that seek to either justify or revise thejus in bello teachings of Just War theory. This discussion will provide a context for appreciating the particular revision proposed by May and for assessing his position about the dangerousness (or the supposed lack thereof) of many enemy soldiers.

War and Morality: Changing Concerns

In its early origins, the doctrine that came to be known as the Just War tradition worked first of all to justify the actions involved in being a soldier. The soldier's paramount moral concern was over the fundamental legitimacy of his station and its duties. If there is an absolute commandment "Thou shalt not kill," how can it be permissible--let alone honorable--to train and to take up arms in a role in which excellence consists in most effectively killing one's enemies? (2)

When the doctrine re-emerged in the later part of the twentieth century, its emphasis was rather different. Yes, pacifism was still a venerable part of the moral landscape; even citizens of the democratic state, with its enhanced legitimacy and moral claim to conscript, could not blithely disregard the bloodshed of warfare. But now the more crucial engagement took place, as it were, on the other flank, facing off against the several varieties of realism. It is no accident that in the opening chapter of the classical restatement of the tradition--Michael Walzer's Just and Unjust Wars--the major effort is directed "Against 'Realism'." (3) With regard to the individual soldier, the main effort here is not so much to convince him that it is no crime to kill the enemy soldiers, but rather to insist that it is a crime to attack enemy civilians. (4)

In the ensuing decades, the main focus of jus in bello arguments has continued to be placed upon this prohibition, now widely called "noncombatant immunity." Much effort has gone into defining and refining the category of "noncombatant" and the scope and implications of the requisite immunity, especially with regard to so-called "collateral damage"--the unintended yet foreseen killing of noncombatants in the course of otherwise legitimate military operations. David Rodin, for example, has argued that such killing, where it involves recklessness or even just negligence, amounts to no less than "unintended terrorism." (5) Such concerns have led some thinkers to adopt contingent pacifism--a doctrine that accepts in principle the Just-War moral endorsement of both individual and national self-defense, yet holds that modern wars cannot in reality be fought while respecting the crucial requirement of noncombatant immunity. (6)

Recently, however, significant attention has returned to the ancient question of the morality of the soldiers' normative (or at least normal) acts of killing--those directed at enemy soldiers. The straightforward permissibility of killing combatants (together with the straightforward prohibition of killing noncombatants) lies at the core of the Just War tradition. Yet contemporary moral philosophers--or at least some of them--are, perhaps more than ever before, demanding an explanation of why killing an (enemy) soldier is excluded outright from the fundamental prohibition of murder.

I will first describe the main answers that have been offered to this question, and then proceed to discuss Larry May's proposal in War Crimes and Just War to significantly reduce the scope of this permission.

Perhaps the most natural response to the question "Why may I (a soldier) kill an enemy soldier?" is in terms of simple self-defense. After all, the enemy soldier is (we assume) armed, and is coming to kill me--surely, then, I am permitted to kill him first! Even if he is merely following orders--and is, moreover, perhaps threatened with dire consequences should he fail to attack me--my right to self-defense is not diminished. The circumstance of being under duress, or in some instances merely under orders, might provide an excuse sufficient to diminish or even negate criminal liability; but it cannot grant immunity from self-defensive action by the attacked party. (7)

The problem here is that the actions of the opposing soldier appear to be not merely excusable but rather justified. After all, if I am asserting my right of self-defense against him, so equally can he assert a right of self-defense against me. He is...

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