ABSTRACT
Ethics of war courses traditionally revolve around two main claims. The first is that ethical practices inhere in the practice of war itself. The second is that we are bound by moral duty – whether required of us by God, humanity or natural law, to act honourably to those with whom we engage in battle. For the most part, most tend to agree with Kant that we have no way of inferring causal relationships outside experience. We cannot infer from a causal order of nature to a God who is the author of nature. There may well be an intelligent designer at work in the world, but if there is we cannot prove it. We cannot infer from the injunctions of God any moral obligations to behave well. We derive those from the experience in dealing with each other. Let us take a central tenet of Kant’s Perpetual Peace, the only book of his that is likely to be found on the syllabus of an ethics course in a military academy or college: ‘No state at war with another shall permit such acts of hostility as would make mutual confidence impossible during a future time of peace’ (Kant 1983: 96). The Kantian injunction cited above is to do nothing in war that makes peace impossible. It is really at one with his most famous formulation, the Second Categorical Imperative: we are all rational beings and therefore should be treated as ends in ourselves, not merely as means or building blocks to the ends of others. If peace is the only reason for going to war, then we must wage it in a way that does nothing that makes it unattainable – by treating our enemies, for example, as a means to some ill-defined greater end. Kant’s views are embodied in the Declaration of the Rights of Man (1789) which grounded right behaviour in reason and social contract theory, though we can find similar sentiments in Cicero’s De Officiis. Indeed, Cicero’s work is particularly interesting because of the absence of social contract theory in the ancient world. In Cicero’s day humanity was the prerogative of the aristocracy – when mercy was shown at all it had to be earned, usually in combat. It was rarely shown to commoners (who did not extend it to aristocrats in turn). Mercy was a gift that might be expected but not demanded. It might have a political pay-off but it was largely part of a warrior’s existential identity – it often marked a disdain for the world of instrumental ends. Cicero could have left the argument there – he could have dealt himself out of the game but instead he dealt himself in. In the De Officiis he leaves the reader in no doubt about his message. ‘Let us remember that justice must be maintained even towards the lowliest’ (Cicero 1991: 39). Cicero did not say that cruelty to one’s own kind is wrong; he counsels us to avoid being cruel
even to the lowliest of our enemies. He accepts the common humanity of both the well-born and the low-born which was more than they tended to grant each other. He accepted that in war both find themselves in the same community of fate. He was intelligent enough to recognise that restraint from cruelty need not be the product of fellow feeling; it is a demand of war. Cicero’s counsel against cruelty was grounded on the understanding that we have escaped the state of nature into a state of reason. It is our ability to perceive the consequences of our actions that sets us apart from more primitive people. Cruelty always put one at risk of regressing into warfare: as Thucydides had warned it can deprive people of the ability to satisfy their needs and reduce them to the level of their circumstances. When a soldier is stripped of all his socially acquired virtues and left in a moral vacuum he is in danger of returning to the primal state. His reason for reaching this conclusion carries with it a real insight. ‘There is no military power so great that it can last for long under the weight of fear’ (Cicero 1991: 2.26). For fear can beget fearfulness – to inspire fear and appear fearful at the same time is usually ruinous – it is likely to provoke a defeated people to revolt. In short, Kant’s injunction is not new. It inheres in the practice of war itself. It is merely expressed in a language with which we are more familiar: that of rights and duties. Indeed, when we look back at the Western battlefield over the last 500 years we see a remarkable consistency of practice. The laws of war rely on a mixture of natural law, military law, common custom and self-interest, and not much has changed. All that has happened is that in the course of the modern era natural law as part of international law has gone ‘positivist’ for the first time: the customs of war (the precedents created by the conduct of war itself ) have remained much the same, but they have been gradually embodied in legal conventions negotiated by states. This should not be allowed to obscure the fact that the conventions that have been transformed into laws such as honouring surrenders, sparing the wounded, or respecting flags of truce – the social conventions that have reduced the danger and chaos of conflict for all combatants – have been observed for centuries. They can be seen as ‘contractual etiquettes’ which provide each party with a vital framework of expectations concerning the conduct of the other. We situate these rights in conventions, or laws of war. But a ‘convention’, as the word suggests, is the institutionalisation of a common practice and the practice is independent of its judicial formulation (i.e. enforcement in a court of law). As a modern thinker, Kant preferred the word ‘responsibility’: we are responsible for the soldiers we capture, or the women and children who fall into our hands. And that responsibility inheres in the dialectic between war and peace. What is important is not to stop, but to stop short: to prevent limited war from becoming unlimited. Since Kant’s day that responsibility has extended even further. So has the law of war. We have added what Michael Walzer calls the ius post bellum, the law of war after formal hostilities have ceased between two states, but during the continuation of military operations against non-state actors including in particular insurgents. As Hans Jonas reminds us, the concept of responsibility nowhere played a central role either in the moral systems of the past, or most philosophical theories of ethics. Nor did the feeling of responsibility appear as the affective moment in the formation of the moral will. Quite different feelings such as love or reverence were assigned this office. And that was largely because responsibility is a function of power and knowledge and until recently both were constrained. Today, by contrast, we have immense power, and greater knowledge though not alas greater wisdom. We are always having to relearn the lessons of history as we are doing in Afghanistan and Iraq. Jonas and the new ethicists maintain that unlike traditional ethics which reckoned only with non-cumulative behaviour, we have to deal with uncertainties for which there is no historical precedent. We have to deal with the unanticipated consequences of our own actions. The military even coined a term for this in the 1990s; effects-based operations. In our networked world we pile
up cumulative effects faster than ever before. Consequences can snowball. Our risk societies deal with probabilities not certainties; they are always estimating, measuring and anticipating the consequences of their actions, the better to manage them as best they can. We live in a world of perceptions, predictions and scenarios. Our actions are based on assumptions, projections and statistical probabilities. At this stage in history this is the shape of our ethical universe. Finally, we no longer live in the stable world of the past. Once ethics was associated with continuity, its main concern was that the state should survive; hence the importance of prudence (not exceeding one’s grasp), as well as moderation (not demanding a Carthaginian peace which could stoke up resentment followed by a wish for revenge). Our world, by contrast, is dynamic. Nothing is stable. Everything is in flux. We are future-oriented for this reason. Responsibility, insists Jonas, is a correlate of power, and the scope and the degree of power we enjoy must determine the scope of our responsibility. What morality restores to an increasingly uncertain world is the idea of responsibility – that what we do severally and collectively makes a difference and that as a consequence the future lies in our hands ( Jonas 1999: 5). Counterinsurgency operations clearly present a very demanding ethical challenge. We do not enter into contracts with insurgents, and they certainly have not signed up to the Geneva Convention. But most ethicists would argue that a state is bound to honour its own customs and conventions even so. The US Supreme Court ruled to this effect in 1967 when the US government asked the judges whether the Vietcong (VC) were owed the same rights as guerrilla fighters as the United States was bound to grant any regular combatant it found itself fighting (Bourke 1999: 197). We are bound for prudential reasons to act in good faith. The same ethics of war must apply in a counterinsurgency as they do in a conventional war. The second approach to ethics insists that we are bound to act correctly according to the dictates of conscience or religious faith. Even Kant invokes a metaphysical concept: a Categorical Imperative. At which point, his critics would contend, he asks too much of us. First, he places far too much faith in reason. Reason for Kant is what it was for Plato – who also saw it as the necessary context of Man’s deepest aspirations and ambitions, though Kant by contrast saw it as a mark of our common humanity (which can be seen as a nobler concept than Plato’s). This fused at a critical moment with the French Revolution which Kant believed had opened a supreme historical window of opportunity for humanity to realise its own freedom in concrete political action – such as the Declaration of the Rights of Man. Of course, today we have far less confidence in reason. We do not spell it with the upper case. And our ability to act unreasonably out of purely rational ends is unlimited as the revolutionary Terror in France later showed. Ethical rules are a manifestation of the Zeitgeist. And the spirit of the times can be murderous as the poet W.B. Yeats recognised in his poem, The Second Coming. Its most famous line is ‘the centre cannot hold’. But there is another which is even more telling: ‘Mere anarchy is loosed upon the world’. What he meant was not disorder or anarchy as such; he meant licensed killing. Twentieth-century states licensed their soldiers to kill in the name of abstract principles, those great ‘alibis of aggression’, Gay calls them, which allowed them to kill with a good conscience, and to kill on a large scale. One of the books whose insights I find especially invaluable is The Cultivation of Hatred, one of the volumes which comprise Peter Gay’s monumental study of the bourgeois experience in nineteenth-century Europe. The Victorians engaged in continuous debates about the moral nature of aggression. These were particularly intense when nation clashed with nation, or class with class. The modern age was always trying to master nature, geography or the ‘other’ and ultimately, of course, ‘self ’. And it produced alibis of aggression which helped to identify the outsider who was to be bullied, ridiculed or exterminated at will. All this amounts to ‘cultivated’ hatred in both senses of the term – at once fostering and restraining hatred at the same time (Gay 1993).
