From Moral Issues that Divide Us
Types of War
What People Think
War as an Inevitability: Plato and Machiavelli
War as a Necessity for Social Development: Hegel and Bernhardi
War as an Evil to be Abolished: Dante, Erasmus, Kant and James
Just War Theory
Public Policy Issues
International Laws of War
National Security and Civil Liberties
Common Arguments Pro and Contra
The Conservative Position
The Liberal Position
A Middle Ground
Reading 1: Grotius on Just and Unjust Wars
A young U.S. soldier named Mike was sent to fight in the Iraq War, where he and his squad had orders to go through houses of a particular city and kill insurgents. As Mike entered a house and moved room to room commando style, he would first toss a concussion grenade into the doorway before him, which would only knock out, but not kill, anyone who happened to be hiding there. He would then peek into the room to see if the knocked out people were insurgents or just non-combatant women and children. If the former, he would then toss in a regular grenade to kill them; if the latter, he would escort them out of the house. Mike did this for about a week, but dozens of soldiers on the same mission were shot and killed by insurgents who were not quite knocked out from the first grenade. Mike then received orders to skip the concussion grenades, and just use the regular ones, which would immediately kill everyone in each room. If it turned out to be filled with women and children, he’d place weapons next to their bodies. When the bodies were officially removed they would burn the houses down to prevent other insurgents from hiding there again. They conducted these house to house searches non-stop for about three months until the entire city was free of insurgents.
Mike was just one cog in the larger U.S. war machine. He had his own private opinions about the justness of the war and the military tactics he carried out, but all of that was irrelevant. He was trained to follow orders from his commanders, which in turn reflected an agenda set by politicians with the support of the citizens. Going to war is one of the most serious decisions that a society can make, and at every stage we must make critical moral choices. Our politicians who declare war have a responsibility to do their homework and determine whether military action is the only viable option. Once war begins the military have the responsibility of conducting warfare in a civilized manner. These are the issues we will look at in this chapter.
In many ways human history is a record of its innumerable wars, and regardless of when and where they have occurred, the results have been the same: widespread death and destruction. During the 20th century alone, the number of people killed in wars worldwide was around 200 million. A general definition of war is that it is an armed conflict between nations or between groups within a nation. The specific causes of war are as diverse as the numbers of wars themselves. For example, we might defend ourselves against an enemy invasion, or help an ally that has been invaded. We ourselves might invade a foreign country to overthrow its government, or free hostages, or stop genocide, or gain access to its natural resources. We might wage a civil or revolutionary war against our own government. We might try to conquer the world. While the causes of war may be numerous, what they have in common is that, to achieve their respective goals, each side attempts to force the other into submission. Austrian military theorist Carl von Clausewitz (1780-1831) famously describes the goal of war as similar to that of sporting competitions:
War is nothing but a duel on an extensive scale. If we would conceive as a unit the countless number of duels which make up a war, we shall do so best by supposing to ourselves two wrestlers. Each strives by physical force to compel the other to submit to his will: each endeavors to throw his adversary, and thus render him incapable of further resistance. War therefore is an act of violence intended to compel our opponent to fulfill our will. [On War (1832), 1.1.2]
Fully understanding war requires knowledge of countless types of political strategies, military tactics, and weaponry. We will look at a few basic distinctions in military theory that illuminate the moral issues surrounding war.
Types of War
An important distinction in military theory is between conventional and nonconventional warfare. Conventional warfare consists of large military forces that aim to quickly reduce an opponent's military capability. Nonconventional warfare is the opposite strategy: smaller bands of militia achieve their goals through small scale operations over a longer period of time. This is also called guerrilla warfare, from the Spanish meaning “little war”. These often involve subversive activities such as sabotage, hit and run raids, and ambushes, all of which have a cumulative effect of wearing down the enemy over time. The main advantage of nonconventional warfare is that it is inexpensive, at least when compared to conventional warfare, and is often the only effective means of combat that poor countries or political factions can afford.
Another distinction is between conventional and nonconventional weapons. Conventional weapons in general refer to the basic type of weaponry that existed before the 20th century, such as guns, swords, cannons, bombs, mines. Contemporary versions of these weapons may be aided by technology, such as laser-guided missiles, but what’s relevant is that the destructive force of conventional weapons is contained within a relatively small area. By contrast there are nonconventional weapons, also called weapons of mass destruction (WMDs), which have a much wider range of destruction and include chemical, biological, and nuclear weapons. What is controversial about weapons of mass destruction is that their wide range of impact makes no distinction between combatants and noncombatants.
A further issue in war involves the amount of resources that a country devotes to its military campaign. Most are limited wars in the sense that only a small segment of the country’s citizens and financial resources are directed towards the war effort, such as the Vietnam and Iraq wars. But occasionally a country devotes everything to achieving victory, thus making it a total war. The most dramatic examples of this in recent history are World War I and World War II, and perhaps also the U.S. Civil War. Total war is defined both by the sweeping scope of the country’s committed resources, and also by the fact that one’s entire country becomes a legitimate military target for the enemy. Once all citizens and resources are committed to the war effort, they are in essence an extension of the military and could possibly be targeted for attack.
The military conflicts of recent decades have introduced a new set of distinctions in warfare, one of which is preemptive war, where a country goes to war against a potential aggressor based on evidence that an enemy attack is forthcoming. The U.S. government used this rationale when launching the Iraq War, based on its suspicion that Iraq was developing weapons of mass destruction. Two main problems with preemptive war strategies are, first, it is difficult to obtain indisputable evidence of a forthcoming attack. The evidence may be faulty or subject to different interpretations, and even an overt statement of threat by an enemy may only be a tactical bluff in the larger game of international politics. Second, those who launch the preemptive attack thereby become the aggressor, and responsibility for starting a war shifts to them.
The notion of terrorism is linked with many recent war efforts. The underlying idea of terrorism is that it is the unlawful use of violence with the intention of intimidating or coercing societies, typically for political reasons. However, the term itself is an uncomplimentary one which one side accuses its enemy of committing, and few groups would voluntarily claim the designation “terrorist” for themselves. Various labels are applied to terrorist groups, such as domestic terrorists, international terrorists, religious terrorists, eco-terrorists, each of which have their own agendas and targets. In matters of war, the notion of international terrorism is the most pertinent one, which the U.S. Government defines here:
The term “international terrorism” means activities that (a) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State; (b) appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum. [U.S. Code, 18.1.133b]
International terrorist groups are often comparatively small organizations with limited financial resources, and consequently use nonconventional warfare tactics that are inexpensive.
Finally, the notion of holy war has been at the heart of military conflicts from past to present. Most major religions of the world have some connection with holy wars at some point in their histories. In Judaism, there was the Maccabean revolt between the Israelites and the Seleucid Empire. In Christianity there was the Thirty Years war between Catholic and Protestant countries in Europe. Islam conducted holy wars, or jihad, in its early days as a means of expanding its faith. Today, though, many moderate Muslim groups distance themselves from contemporary applications of jihad, and see the notion of a literal "holy war" as pertaining to Islam's political and theological history. Extreme Muslim groups, by contrast, have embraced it as a means of defending their value system from corrupting influences of Western societies. The term “jihadism” is sometimes used to describe these warring efforts of Muslim extremists, and thereby distinguish such extremism from the historical notion of jihad within Islam.
What People Think
The surveys below reflect the attitudes of U.S. citizens on several war-related issues (from www.pollingreports.com).
"Do you, yourself, feel that our national defense is stronger now than it needs to be, not strong enough, or about right at the present time?" (2/11-14/08)
Too Strong: 10%
Not Strong Enough: 47%
About Right: 41%
"Do you think the United Nations is doing a good job or a poor job in trying to solve the problems it has had to face?" ( 2/11-14/08)
Good Job: 27%
Poor Job: 65%
Which statement comes closest to your view? . . ." (3/21-23/05)
No countries should be allowed to have nuclear weapons: 66
Only the U.S. and its allies should be allowed to have nuclear weapons: 13
Only countries that already have nuclear weapons should be allowed to have them: 11
Any country that is able to develop nuclear weapons should be allowed to have them: 5
Only the U.S. should be allowed to have nuclear weapons: 1
"Do you agree or disagree that the U.S. and other Western powers have a moral obligation to use military force if necessary, to prevent one group of people from committing genocide against another?" (5/2-14/06)
Philosophers since ancient times have had much to say about the subject of war, and this is no surprise considering how prevalent wars have been as far back as history records. The moral theories about war have been wide ranging, and often radically opposed to each other. The particular ethical issues surrounding war that we will consider here are these: Is war inevitable? Is it a necessary good for social development? Is it an unnecessary evil that should and can be abolished? Are there moral rules for justly engaging in war? Are there grounds for pacifism? Is torture justifiable?
War as an Inevitability: Plato and Machiavelli
A first view about war is that it is an inevitable fact of life, and nations should do everything they can to prepare for it and be successful. We find this theme in two of the greatest political philosophers, Plato (428- 348 BCE) and Niccolò Machiavelli (1469-1527).
Plato presents his view of war in his work The Republic, which is a vision of a utopian society that is ruled over by a philosopher-king, where all segments of society work in perfect harmony with each other. His position is that, war will not arise in tiny states that have minimal needs, but it will be inevitable in large societies that have greater needs, particularly for luxury goods. In both cases, he argues, a state’s very existence owes to the needs of its people. We all have many needs, starting with the most basic ones of food, clothing and shelter, and the most efficient way to secure these is through a division of labor where, for example, I grow the food, you make the clothes, and someone else builds the houses. We will also need specialized craftsman to make tools for us, and herdsmen to supply animals. Still, Plato argues, “our state will not be very large.” Our lifestyle in this small society will be very simple, but if we can limit our number of children to what our resources will permit, we can avoid both poverty and war. What Plato describes here is a primitive natural condition of peace which can be sustained by keeping our needs simple and our numbers small. This assumes, of course, that all surrounding societies will also be simple and small and have no motivation to invade their neighbors.
However, Plato suggests that our human natures will not be satisfied with such simple lifestyles, and people will want more luxuries, such as sofas, tables, perfumes, incense, cakes. “They will want all these, and not just one type only, but in every variety.” This requires more people with specialized skills, and, consequently more land and more natural resources which we will need to take from neighboring societies:
We will want a slice of our neighbors’ land for pasture and tillage, and they will want a slice of ours, if, like ourselves, they exceed the limit of necessity, and give themselves up to the unlimited accumulation of wealth? [Republic, 2]
That is, we will need to go to war. At this point, our state will grow even larger as we form an army to protect what we have and acquire what we need. Because the very survival of our society now depends on the military, our soldiers must always be at their best, and thus need to be full-time, and not simply weekend volunteers. Plato speculates about how societies might scale back their desires for luxuries through moral education and moral leadership of the philosopher-king. But at this point it is too little too late. The sheer size of our state will both demand outside resources and also make it a target for invaders. Thus, war is inevitable and a permanent military is essential for a state’s survival.
Machiavelli’s approach to political society is less speculative and more practical than Plato’s but they end up at the same place. According to Machiavelli, inescapable changes in fortune make war inevitable, and the successful ruler must always study war and be prepared for it. There was a popular concept in renaissance literature of the “wheel of fortune” where a goddess named Fortune would spin a giant lottery wheel to determine people’s fate. While Machiavelli does not refer specifically to Fortune’s wheel, he does personify fortune as a woman, and the unpredictable nature of fortune is central to Machiavelli’s theory. For Machiavelli, crazy things just happen in the world around us, as though they were orchestrated by cosmic fate. Much of this we have no control over, such as the occurrence of disastrous floods that “sweep away trees and buildings, move away the soil from place to place” (Prince, 25). Still, we try to anticipate these misfortunes and make preparations to minimize their damage. In a sense, the ongoing task of a successful ruler is damage control, not just after a tragedy strikes, but even more so before the unfortunate events occur. War is one of those misfortunes that we know is always on the horizon, and the best thing a ruler can do is prepare for it.
Machiavelli has two pieces of advice to help rulers survive war. First, he argues, soldiers should be recruited from among one’s own citizens, rather than hiring foreign mercenaries or auxiliary soldiers on loan from another country. Mercenaries are only in it for the money and will be cowardly rather than valiant on the battle field. Auxiliaries, on the other hand, will use their valor to further the interests of their home country, to whom they owe loyalty. Second, rulers should continually educate themselves about warfare, by learning more about the geography of their own countries and reading historical accounts of wars to develop better defensive strategies. These preparations for war are no guarantee that the ruler will outsmart Fortune and her whims, but it is better than doing nothing and simply waiting for neighbors to attack.
Not much can be said in critique of Plato and Machiavelli’s views of the inevitability of war. In the centuries that have passed since their times, we see that countries continually plunder their neighbors for resources and that global conflict is unpredictable. Whether war will be with us until the end of time, neither philosopher says, but the implication is that, with society being what it is, we can count on it for the foreseeable future. While Plato and Machiavelli believed that war was inevitable, they did not think it was a good thing. Plato in particular held that war is one of life’s great evils and results from bodily cravings that obstruct our souls from seeing truth (Phaedo). Another group of philosophers, however, felt otherwise and considered war not only inevitable but a good thing. We turn to this view next.
War as a Necessity for Social Development: Hegel and Bernhardi
The second view of war is that it is a necessary good for social development and progress, and two advocates of this position are Georg Wilhelm Friedrich Hegel (1770-1831) and Friedrich von Bernhardi (1849-1930).
Hegel held that war is a positive good in the ethical life of a state because it prevents social stagnation and unifies the people. For Hegel, war plays a critical role in how societies develop. World history and human culture is like a giant collective mind that changes and progresses over time. Imagine that the entire world with all of its societies was a single living organism that continually grows and develops throughout history. Conflicts invariably develop between one social group and another, and this giant mind attempts to resolve these internal conflicts in positive ways. For Hegel, this is precisely what happens with war. Conflict begins when societies break off into their own little factions, asserting personal freedoms, private property, and specialized trade organizations. By doing so, they isolate themselves from the larger collective mind in which they exist. These conflicts are then resolved through war, and societies emerge more unified. Hegel writes,
To prevent these [individual factions] from getting rooted and settled in their isolation and thus breaking up the whole into fragments and letting the common mind evaporate, from time to time government has to shake them to the very center through war. By this means the government disrupts the order that has been established and arranged, and violates that right to independence. (Phenomenology of Mind, 1807, “Ethical World”)
According to Hegel, the problem with social isolation is that it creates an artificial sense of stability and comfort by placing too much value on finite and fixed interests, which are contrary the larger social unity of the collective mind. Such social isolation, then, creates social stagnation, and war is an important way of combating this. For, “Just as the blowing wind is needed to prevent lakes from stagnating by being too calm, so too war is needed to prevent society from stagnating through continued peace” (Philosophy of Right, 1821, 324). For Hegel, history shows that successful wars have prevented civil unrest and strengthened the internal powers of states. In this way, countries at war “win peace at home by means of war abroad”. Hegel recognizes that wars create within us a sense of insecurity concerning our personal possessions, since they may all be destroyed in battles. However, this teaches us an important lesson about placing value in temporal things, which are uncertain and unstable. Rather, sober reflections of history show us that, just as seeds spring up afresh each season. There is, then, an ethical element of war, and “war is not to be regarded as an absolute evil”.
Hegel composed his works a half-century before Darwin, and did not draw on concepts of evolution in his account of social progress through conflict. However, later writers latched onto the survival of the fittest theme of evolutionary theory and saw war as a critical tool of social improvement. A case in point is a work by Prussian military historian Friedrich von Bernhardi titled Germany and the Next War (1911). It is through war, he argues, that nations exhibit their superior qualities, and these push forward “the great evolution of human existence”. In times of war, nations compete against each other with the best physical, mental, moral, material, and political abilities that they have, and the winner is the one whose abilities are the strongest. Those superior qualities will enhance human existence, and the inferior qualities of the defeated nation will not dominate. It is precisely those strengths that assure victory in war that will also make possible a “general progressive development” within society in times of peace. Without war, the inferior and decaying nations would “easily choke the growth of healthy budding elements, and a universal decadence would follow.”
Bernhardi acknowledges that not every war propels society forward, and petty skirmishes between rival countries need to be prevented. Because of this, we should applaud the efforts of international organizations to avoid minor conflicts and reduce their damage if they do occur. However, it is entirely different with major wars where competing values and ideologies are at stake. In such cases, “nothing is left except war to secure the dominance of the true elements of progress over the spirits of corruption and decay.” This positive effect cannot be accomplished through mere peaceful rivalry between countries, such as that which takes place between competing sports teams or businesses in ordinary life. Rather, it is a situation of winner takes all, where the values of the victor are imposed on the defeated. In this way, war as a creative and purifying power, along with its destructive power. It is a “biological necessity” that regulates the life of humankind, and without it there would be no advancement of our species and no real civilization.
What should we think about this view that war is a necessary means for social progress? There are two problems with it, the first of which is that their theories are unacceptably nationalistic by today’s standards. Both Hegel and Bernhardi reflect the growth of nationalist attitudes during the nineteenth century, where, following the French Revolution, many European countries gained independence and forged national identities. In this social context, it was natural for these writers to conceive of one nation advancing civilization by spreading their superior culture through warfare. Today, however, this is a frightening scenario, and the lessons of World War II are a grave reminder of how this can go wrong. But even if we set aside the nationalistic component, there is a second problem, namely, that it is morally suspect to suggest that such widespread devastation and suffering is justified as a means of creating a morally superior world. A common theme in science fiction stories is that a villain seeks to wipe out most of the life on earth so that a better world can emerge through a surviving remnant of humans, or advanced robots, or an all new evolutionary line of creatures. In these films the hero defeats the villain just in time, but let’s suppose that the villain succeeded, and the new world was in fact an improvement over the old. Would you consider this a happy ending to the story? Probably not, and filmmakers suspect as much when they invariably opt to have the hero triumph over the villain. While this is an extreme illustration, it is close enough to what Hegel and Bernhardi are suggesting that we can draw a similar conclusion: a war is not made morally good because of the positive transformations that it brings about. We accept the positive consequence of a war mainly because we do not have the power to reset time and stop it before it begins. Virtually every society, including the best ones, are built upon multiple layers of past injustices, such as genocide, slavery and wars of expansion. Each of these layers of tragedy remains morally unjustifiable, and it is a permanent burden of guilt that the successive society must forever carry.
War as an Evil to be Abolished: Dante, Erasmus, Kant and James
While Plato and Machiavelli believed that war is inevitable, and Hegel and Bernhardi argued further that major wars of competing ideologies are a good thing, we turn next to a third group of philosophers who disputed these assumptions. On their view, war is a fundamental evil that can and should be eliminated, and the proponents that we will examine are Dante Alighieri (1265- 1321), Desiderius Erasmus (1466- 1536), Immanuel Kant (1724- 1804) and William James (1842- 1910).
In political philosophy Dante made his mark by defending the idea of a world monarchy. He devoted an entire book to the subject titled On Monarchy (1313), and, among his arguments, maintained that a single ruler would act more efficiently than would several rulers, and would be able to harmonize the wills of all citizens. Also, he argues, when different things are designed for single end, one of them must be the ruler and the rest must follow. For example, a ship has many officers to fulfill various functions, and but there will be one main officer to rule over the subordinate ones. So to the natural way to manage the leaders of multiple nations is to have main ruler one over them all. An important consequence of a world monarchy is that it would put an end to wars. Like Plato, he holds that wars arise because the human mind is unsatisfied with limited possession of land, and countries seek to acquire more property by invading neighboring countries. The tragedy of such warfare strikes the nation as a whole, as well as its cities, neighborhoods, and households. However, a world monarch would in a sense already possess everything and consequently there would be no foreign country for him to desire. Further, the monarch would set fix boundaries of his territories and make sure that the local rulers remain within them (Convivio 4.4). While the prospect of a world monarchy is no longer realistic, Dante’s underlying intuition is still sound: a world government could be devised to keep territories within their boundaries and eliminate the evils of war.
Next, Erasmus argued that wars are fundamentally unnatural and can be abolished by practicing moral virtue. He argues that the one thing that everyone on this planet should uniformly disapprove of is war since nothing else is “more productive of misery, more widely destructive, more persistent in harm, and more unworthy of humans as formed by nature” (Against War, 1515). The unnaturalness of war becomes evident if we contrast the destructive features of war with the inherent gentleness of human nature. Nature has fashioned our bodies and behavior for friendship and kindness, rather than war and destruction:
whereas nature has armed all other animals with their own armor, as the violence of the bulls she has armed with horns, the ramping lion with claws . . . humans alone she has brought forth all naked, weak, tender, and without any armor, with most soft flesh and smooth skin [Against War]
Further, Erasmus says, we are formed with a love of companionship and hatred of solitariness, which gives us a natural inclination for benevolence. We moreover have a natural desire to pursue knowledge of the liberal arts, and this pulls us away from animalistic wildness. We have such a variety of unique abilities that there is something that we can find admirable in each person. If it turns out that, in spite of every type of negotiation a military conflict is unavoidable, a war should just be restricted to bad people. However, Erasmus believes, war can be completely eliminated if we all cultivate three specific qualities. First, innocence will make us free from vice, second, charity will have us do good to everyone to the best of our abilities, and, third, patience will enable us to tolerate those who treat us unkindly, and perhaps even encourage us to overcome those wrongs through good deeds.
Next, Kant argued that we can permanently end war through an international federation of peace to which all countries would agree. Kant recognizes that the natural condition of primitive human beings is one of war where people are regularly embroiled in hostilities or at least threatened with them. Fortunately, civilized countries denounce this lawless liberty with profound contempt and considered it to be and “a brutal degradation of humanity” (Perpetual Peace, 1795). We would then think that the world’s countries would have equal contempt for war and nations that engage in it, but instead we find that every country founds its glory on its strength in warfare. Thus, individual countries are as lawless as primitive humans in the natural condition. The solution, Kant believes, is for all countries to enter into a Federation of Peace Compact, that would attempt to permanently put an end to all wars. The political process may begin with a single country that is devoted to abolishing war and this will become a magnet for other countries to attach themselves to. The most effective type of international agreement would be to set up a world government to force each nation to behave, just individual countries force each of their citizens to behave. It would not be a world monarchy, though, as Dante recommended, but a Universal Republic along more democratic lines. But while this would be the most effective political arrangement, Kant feels that countries may not be willing to give up that level of autonomy. Instead, they might only be willing to accept a more limited political arrangement whose primary aim is to prevent war, but this will be less effective and there will still be a danger of wars eventually breaking out. Fortunately, for Kant, nature itself provides us with a guarantee that the world will finally achieve perpetual peace. For, “the mechanical course of nature visibly exhibits a design to bring forth order out of the disorder of men, even against their will.” We commonly call this natural design “fate” or “providence”. Nevertheless, it is still only through a Universal Republic that this can be achieved.
Lastly, William James argues that war and its brutality will finally end when we replace it with a type of civil discipline that fills the human impulse for military discipline. In James’s words, we need a “moral equivalent of war”, that is, a morally-grounded social discipline that can serve as an adequate substitute for military discipline. James maintains that human nature is constituted in such a way that “people want war” and “a millennium of peace would not breed the fighting disposition out of our bone and marrow” (“Remarks at the Peace Banquet,” 1904). If we ever hope to end war and the tragedy it creates, we must find a way to work with our confrontational human nature. To that end, if permanent peace will ever be achieved on this planet, countries must “preserve some of the old elements of army-discipline” (“The Moral Equivalent of War,” 1906). Some military qualities are genuine and permanent human goods such as “intrepidity, contempt of softness, surrender of private interest, obedience to command”. They reflect a general “competitive passion” within human nature, which is needed as a foundation for the creation of a country. But war is not the only competitive discipline that will accomplish this. The same kind of discipline can be channeled to solving problems of social injustice and inequality which are “capable of arousing indignation in reflective minds”. James’s solution is the creation of a mandatory national youth service where young men would learn labor skills from dishwashing to coalmining, to roadbuilding, whichever appeals to them. This, he believes, would “get the childishness knocked out of them” and allow them to return to society with healthier sympathies and soberer ideas and acquire a “toughness without callousness”.
The solutions to war by these four philosophers are remarkable for their variety, and also for how they reflect the time periods in which they lived. Dante, in the late middle ages, looked back at the former glory of Rome and hoped that a similar world empire would emerge in Europe that would bring about a new era of peace. Erasmus, during the Renaissance, had an optimism about human nature which, if cultivated properly, would have each of us individually shun war and embrace our sociable inclinations. Kant, in the enlightenment, stressed the role of human reason in moral and political matters, and believed that reason would drive countries to end war by constructing a peace federation. James, in modern times, had a more skeptical view of human reason, and believed that we must creatively redirect our instinctive warring spirit in a way that achieves social justice. Despite their differences, each of these philosophers acknowledge that ending war is a challenging task that can only be achieved through a radical change in the status quo. We may question each of their solutions for abolishing war as being too idealistic, or too dated, or maybe even too naive. But their larger message, which perhaps we can all accept, is that we must not resign ourselves to the inevitability of war, as Plato and Machiavelli did, and certainly not glorify it as a moral good as Hegel and Bernhardi did. The consequences of doing so are too tragic and even suicidal. It may, in fact, be the spirit of optimism shared by Dante, Erasmus, Kant and James over many centuries that is the greatest confirmation that perpetual peace can be achieved. We can confidently believe that, as time passes, new prophets of peace will appear just like them, and eventually a social context will emerge that will be better suited for people to embrace their message.
Whether one holds to the inevitability, the moral goodness, or the abolition of war, there still can be a common conviction that war does not give a license for combatants to do anything, and some moral restrictions are needed. We turn to this issue next.
Just War Theory
If we comb through history, we may identify a long list of wars that were nothing but evil from either side of the conflict. Imagine, for example, two countries that go to war against each other to determine which of them gets to colonize and exploit a third country. Everything about that scenario is bad, and morally speaking, it should have never taken place to begin with. Other wars, though, may have some moral justification, such as if our country declares war against a foreign power because it is attempting to invade us. It is this latter situation that concerns us now, and is the subject of what is called just war theory, namely, the view that some wars are morally justifiable when specific conditions are met. Just war theories in philosophy are around 2,000 years old, and the two most influential philosophers on the matter are Thomas Aquinas (1225-1274) and Hugo Grotius (1583-1645). The theory has continually evolved to the present, and we will consider the central themes of the tradition as we find it today.
Just war theory has two main parts, the first being an account of the just conditions for initially waging war, which goes by the Latin phrase jus ad bellum, meaning “justice to war”. Second is an account of the conditions of proper conduct during warfare, designated by the Latin jus in bello, meaning “justice in war.” The first element of just war theory concerns whether there are just grounds to even go to war, and, traditionally, five key conditions must be met for an initial declaration of war to be just.
The first condition is just cause: the cause or purpose of the war must be a proper one, such as self-defense, resisting serious aggression, or redressing some wrong suffered. Aquinas writes of just cause that “those who are attacked should be attacked because they deserve it on account of some fault” (Summa Theologica, 18.104.22.168). Grotius similarly states “when our lives are threatened with immediate danger, it is lawful to kill the aggressor, if the danger cannot otherwise be avoided.” When the Japanese attacked Pearl Harbor, for example, the U.S. had just cause in declaring war to resist Japanese aggression. While it might seem clear enough to say that the causes of a particular war might be just, there are problem cases, such as with religious wars where the causes are largely ideological. The Crusades, for example, aimed at freeing the Holy Land of Muslim rule and placing it under Christian authority, and by today’s standards this would not be a just cause. Today we commonly restrict the just cause of war to one of two situations, the one being the resistance of serious aggression from a hostile country, particularly especially when the aggression is actually present, rather than merely anticipated, as in the case of preemptive wars. The other situation is humanitarian intervention, where an outside country such as the U.S. steps into a foreign conflict such as a civil war in an African country, to prevent genocide.
The second condition for initially waging a just war is right intention: there must be a proper underlying motive to declare war, such as the desire to return to the state of peace prior to an outside invasion. Even if there is rightful cause to declare war on an enemy, such as responding to an attack, the intention cannot be clouded by hidden motives. Wrong intentions would be nationalism, vengeance, acquiring land, plundering the resources of another country, or venting racial hatred. For Aquinas, right intention involves promoting good and avoiding evil, which would disqualify all of these questionable intentions. A problem with the criterion of right intention is that wars often proceed from a variety of motives, and it may be difficult to identify the dominant one. Thus, while our announced intention for declaring a specific war may be to restore peace, other factors will invariably enter into the equation, such as whether a war will advance a country’s international standing or give it access to foreign resources. For example, in the Iraq War, the U.S. intention to remove a hostile government was coupled with a desire to access Iraq’s oil, and this raised questions about whether the U.S. had the right intention.
The third condition is proper authority: the war must be publicly announced by the legitimate authority and made known to the enemy. Even just causes cannot be militarily pursued by individuals or groups who are not the proper authorities of governments. If Canada invades the U.S., the National Rifle Association cannot respond by declaring war against Canada. Ideally, the condition of proper authority should involve a formal declaration to the enemy country; however, this is not feasible if doing so would compromise a military strategy such as an unannounced air strike to catch the enemy off guard. One problem with the condition of proper authority is determining what in fact constitutes a legitimate authority, such as if a country’s leader assumed power through voter fraud or violence. Another problem is that revolutions and civil wars involve rebellions against the ruling authority itself, and thus rebel groups by definition do not have any authoritative standing to declare war against the ruling government. Yet some civil wars seem to be morally justified such as when the ruling government engages in human rights atrocities.
The fourth condition is last resort: all non-military options must be attempted before going to war, such as efforts at political diplomacy or economic sanctions. It makes no sense to engage in the most destructive human activity when more peaceful solutions are available. A problem with this condition is that it is difficult to determine when non-military options run out, since there may always be additional economic or diplomatic sanctions that one could impose on a hostile country.
The fifth condition is reasonable success: if the outcome of a war is unlikely, it is wrong to sacrifice human lives and squander economic resources. France faced this problem in World War II when it was invaded by Germany. Even though France had just cause to respond militarily, they realized they were no match for German forces and so they gave up. A problem with the condition of reasonable success is that it may not always be wrong to resist an aggressor even if there are no realistic prospects for success. This is particularly so if the aggressor has a reputation for genocide or brutalizing civilians: it is better to die fighting than to die in an extermination camp.
Each of these five conditions for initially declaring a just war (jus ad bellum) face some practical problem, and it is clear that no precise list of conditions will apply in every morally justifiable war. Even so, these conditions are a valuable starting point to assess the moral status of an armed conflict, after which there may be discussion about the extenuating circumstances of a specific conflict.
Next is the issue of just warfare tactics (jus in bello): even if all five of the above conditions of declaring a war are met, we must ask whether some warfare tactics are too brutal. Machiavelli argued that when defending one’s country, anything goes:
Where the entire safety of the country is to be decided, there ought not to exist any consideration of what is just or unjust, nor what is merciful or cruel, nor what is praiseworthy or ignominious; rather, ahead of every other consideration, that proceeding ought to be followed which will save the life of the country and maintain its liberty.” (Discourses, 3.41)
Just war theorists disagree, though, and set two main conditions that determine just warfare tactics. The first is discrimination: we must identify legitimate military targets and distinguish combatants from noncombatants. It is morally wrong to intentionally bomb schools, hospitals, and residential neighborhoods. Civilian deaths are sometimes an unavoidable consequence of warfare, such as when bombs miss their target, or civilians are in the path of a critical military target. Though regrettable, this is an accepted side effect even in a just war; Grotius writes that during a military attack “humanity will require that the greatest precaution should be used against involving the innocent in danger, except in cases of extreme urgency and utility” (The Laws of War and Peace, 3.12). The requirement of discrimination is especially problematic in cases of total war where an enemy country devotes its resources to its war campaign, and, thus, the distinction between military personnel and civilians becomes blurred. During World War II the U.S. and British launched a relentless bombing raid against the German city of Dresden which resulted in the deaths of 25,000 people, largely civilians. Though the decision was controversial, the U.S. claimed it was justified because the city as a whole was a critical component of German military strength.
The second condition of just warfare tactics is proportionality: the military should only use the amount of force that is required to achieve its goal. You do not kill 1,000 enemy soldiers if killing only 100 will force their surrender. You do not fire bomb a city if it serves no strategic purpose. For example, critics of the Dresden bombing argue that it was not necessary for the U.S. to accomplish its military objective since the city was not a critical military target and the Germans were on the verge of surrendering anyway. Weapons of mass destruction, particularly nuclear weapons, invariably fail the test of proportionality since the scope of their destruction vastly surpasses what is needed to obtain a military objective.
Just war theory is an attempt to bring some moral order to the destructive consequences of war, but pacifists argue that it does not go nearly far enough. Rather, according to pacifism, no wars are justifiable, period. Famous people associated with pacifism in recent history include Tolstoy, Gandhi, Einstein, Martin Luther King, and the Dalai Lama. Although pacifists oppose war, they do not believe that we should idly sit by when faced with military aggressors and the threat of attack. Rather, they advocate pursuing only non-violent options to block aggression. There are varying degrees of pacifist conviction, and a moderate form, called conditional pacifism, maintains that some wars might be justifiable. Although they oppose war and violence in principle, they nevertheless hold that sometimes war is better than the alternatives. The most extreme form of pacifism, though, is called absolute pacifism, which is that all wars, with no exception, are wrong. For example, during World War II Gandhi recognized that Hitler’s treatment of the Jews was dreadful, but nevertheless felt that all wars are wrong, including one with Germany:
If there ever could be a justifiable war in the name of and for humanity, a war against Germany to prevent the want on persecution of a whole race, would be completely justified. But I do not believe in any war. A discussion of the pros and cons of such a war is, therefore, outside my horizon or province. (“The Jews in Palestine,” 1938)
Pacifists give a variety of reasons for their anti-war convictions, but the most prevalent one is on religious grounds: their religious tradition opposes war and is backed by their interpretation of scripture. The earliest Christian writers were largely pacifist, as reflected in the following statement from the early Church father Tertullian (160-220):
Should it be considered lawful to make an occupation of the sword, when the Lord proclaims that he who uses the sword will die by the sword? Should the son of peace take part in the battle when it is improper for him to even sue someone? Should he use the chain, prison, torture, and punishment, when he is not even the avenger even of his own wrongs? While I address this primary aspect of the question, I will not even say anything about unlawfulness of a military life itself. (Treatise on the Crown, 11)
Tertullian’s point is that military life is contrary to the standard of peace that Jesus established. Christian pacifism declined when Christianity assumed a position of political dominance in the medieval world, but in recent centuries pacifism has reemerged among the protestant denominations of Quakers, Brethren and Mennonites. In each case, their pacifist conviction is grounded in their particular religious tradition and interpretation of religious texts, and so religious pacifism lacks a more universally accepted justification.
A second and more secular justification for pacifism is pragmatic: the best strategy for securing world peace is to oppose war, since this will force us to consider non-military options. Wars typically do not solve the underlying problems that spark them, or make the world a safer place, or bring about international unity. Non-military options will always be more successful in the long run. Nineteenth-century pacifist Adin Ballou (1803-1890) argues that, cumulatively, wars have destroyed more lives than they have saved:
[If self-defense through war] is the true method, it must on the whole work well. It must preserve human life and secure mankind against injury, more certainly and effectually than any other possible method. Has it done this? I do not admit it. How happens it that, according to the lowest probable estimate, some fourteen billion human beings have been slain by human means, in war and otherwise? Here are enough to people eighteen planets like the earth with its present population. [Christian Non-Resistance, 1846]
Ballou concludes that the body count would be far less if the bad guys in this world just did what they wanted and their victims passively allowed it.
A common objection to absolute pacifism is the free rider criticism: pacifists themselves enjoy the benefits of a protected society without participating in its defense. It is easy for the pacifist to sit back and oppose a war when others are doing the hard work fighting off the enemy. They in essence receive the benefits of the war effort without doing any of the fighting, and thus get a free ride at the expense of others. There are two responses to this objection. First, even if pacifists benefit from the outcome of a war, there is no telling at that point whether the same benefit might have been achieved more peacefully. Pacifists have participated in the democratic process, but society has rejected the non-military solutions that they have offered. Pacifists should thus not be penalized if society rejects their more peaceful strategies. Second, the life of a pacifist is not particularly easy in time of war. They are often publicly ridiculed and threatened, and are jailed when refusing to comply with a military draft. They pay their dues for their convictions, and there is nothing free about the benefits they might receive from war.
American philosopher Paul Weiss (1901-2002) offers another criticism of pacifism. He concedes that the standard objections to pacifism are not successful. Pacifism, in its most compelling form, is a consistent commitment to the ideal of non-violence during both times of peace and war. This, he argues, is important for counterbalancing other people in society who are quick to respond to international threats with military force. Society benefits when we have people on both sides of the issue, and that includes pacifists. However, Weiss says, in the most urgent military situations, where the enemy is at our doorstep, pacifism is not justifiable:
Pacifism is a civilized virtue; it presupposes the existence of some society or other, and the achievement of a fair degree of civilization. When men have reached that desperate state where civilization is passing away, ethical pacifism has no longer anything to say. [“The Ethics of Pacifism,” Philosophical Review (1942), Vol. 51]
For Weiss, the pacifist viewpoint presupposes an orderly society in which the prospect of continual peace is at least a possibility. However, sometimes an attacker is so powerful and so evil that the existence of civilized society itself is at risk; we might be overpowered and slaughtered, and survivors thrown back into the dark ages. When a threat like that is immediate, the pacifist himself must abandon his beliefs and take up arms to defend the social foundation upon which the pacifist viewpoint itself depends.
While pacifism may undermine itself in the very worst case scenario, according to Weiss it still has an important and ongoing role in public discussions about going to war. Barak Obama, in his 2009 Nobel Prize acceptance speech, makes a similar point about the value of the pacifist ideal. On the one hand, Obama argues, in our current stage of social development, war is a tragic reality: great evils exist in the world, and “a nonviolent movement could not have halted Hitler's armies.” In that respect, wars that block aggression or stop genocide may be instruments of good. On the other hand, though, the pacifist vision set forth by Gandhi, Martin Luther King and others are still important for showing us what we might one day be as a human society:
if we lose that faith — if we dismiss it as silly or naive, if we divorce it from the decisions that we make on issues of war and peace — then we lose what is best about humanity. We lose our sense of possibility. We lose our moral compass.
For Obama, it is not just that we as a society should tolerate pacifists and their message of non-violence. Rather, we must try to live by their example to the extent that the harsh reality of international conflict allows.
Imagine that we are at war with another country and have captured an enemy military leader who has information about a forthcoming attack against us. If we can get him to talk, we will be able to avert the attack and save thousands of lives, both military and civilian. He’s in an interrogation room and so far our tactics have been gentle. We have tried reasoning and negotiating with him, and even offered him amnesty and a new identity for cooperating, but he remains resolutely silent. Time is running out. Should we ratchet up our interrogation methods and torture him to get the information we need? This is an example of what is commonly called the ticking time bomb scenario, and it raises the question of whether torture is morally justifiable as a last resort for saving innocent lives. There are two approaches to answering this question, each of which is grounded in a classic theory of morality.
The first approach is to say yes, torture in this situation is justified on a cost-benefit analysis: the pain of the captive is outweighed by the saved innocent lives. The classic moral theory in this case is utilitarianism: a course of action is good if it brings about the greatest good for the greatest number of people. Everyone’s interests are taken into account, and placed in a balancing pan, one side against the other. The side with the greatest weight, then, is the morally superior course of action. In our ticking time bomb scenario, the enemy captive’s interests are weighed along with everyone else’s: he too gets a vote, and is not simply dismissed. But, on balance, his interests are outweighed by everyone else’s and we thus are justified in doing what we have to with him to secure those greater interests.
There are two problems with this utilitarian justification to torture. First it’s easy to overlook the negative consequences of torture. Our enemy will feel free to torture our soldiers if they are captured. Further, with a country as influential as the U.S., a policy of torture could be copied throughout the world. Tom Malinowski, director of the organization Human Rights Watch, argues this point:
The United States is a standard setter in everything it does, for better or for worse. . . . [W]hen the United States bends the rules to torture or to secretly and unlawfully detain even one person . . . then all bets are off. The entire framework upon which we depend to protect human rights—from the Geneva Conventions and treaties against torture—begins to fall apart. [U.S. Senate committee hearing, Extraordinary Rendition, Extraterritorial Detention, and Treatment of Detainees, July 26, 2007]
A second problem with the utilitarian justification is that the ticking time bomb scenario does not fully take into account the interests of everyone affected. It focuses only on the interests of one side of the military contest—our side—and ignores the interests of the enemy. It assumes that the war we’re engaged in is a just war, and a victory for us will produce the greatest good for the greatest number of people worldwide. But if that assumption is wrong, then utilitarianism will not work as a moral justification. Morality does not show favoritism to one nation over another, and we must be on the side of right in a war before we can call upon utilitarianism as a moral defense for torture. We still might use a cost-benefit analysis as a pragmatic justification for torturing the enemy captive for purposes of public relations and press releases. But the moral force of that justification will fall flat.
The second approach to the ticking time bomb scenario is to say no, torture is never justified since it violates a non-negotiable moral right. The classic moral position here is rights theory with its companion duty theory: all humans have a set of fundamental moral rights, and corresponding moral duties to acknowledge the rights of others. Some of those rights are so compelling that they can never be overridden by any other competing. Take slavery, for example. We have a moral right not to be enslaved, and a duty to not enslave others, and it does not matter what benefit might come from slavery. Suppose that we decide to enslave all people who are albinos and force them to perform society’s most unpleasant and dangerous tasks. Just the albinos, and no one else. That’s a bad deal for the albinos, but, on balance, it may well benefit society as a whole. This still does not matter: no one should ever be enslaved, including albinos, and that’s that. Torture falls into the same category. While we might envision a case like the ticking time bomb scenario where society as a whole would benefit by torturing someone, it simply should never be done since the right not to be tortured can never be overridden by a competing interest.
The key problem with this rights-duty critique of torture is its contention that some special rights can never be overridden. If we get creative enough we can envision some scenario, no matter how outlandish. Perhaps an insane dictator has given us an ultimatum that if we do not torture or enslave some particular person, he will destroy the entire planet and every living thing on it. Yes, we have a very compelling duty to not torture or enslave anyone, but that duty is overridden by a more compelling interest to save the world. It does not matter that this scenario is outlandish: it still shows that our favorite non-negotiable rights are really not 100% non-negotiable. The question then becomes what are the more realistic scenarios that might justify torture or slavery. There is no question that a hard-line stance against torture and slavery is pragmatically important for ending human rights abuses. But that hard-line rhetoric, as important and noble as it is, glosses over important questions about non-negotiable—or minimally negotiable—rights and duties.
What can we now say about the morality of torture? For either the utilitarian or rights theory side of the debate, it is not a slam dunk. Contrary to rights theorists, there may well be extreme situations in which torture is morally justified when weighed against more compelling interests. However, contrary to utilitarians, when all of the relevant consequences are placed into the balance, it may be exceedingly rare to find a real-life situation where torture is morally justified—and not merely pragmatically useful for a short term political goal.
PUBLIC POLICY ISSUES
Just war theory is a convenient tool for passing moral judgment on a government in times of military conflict. It allows us to quickly identify the government’s duty, and expose where it might have fallen short of fulfilling it. Still, just war theory is only a moral theory, and it carries no force of law. Each country has its own guidelines for declaring and conducting wars, and international treaties have helped further define the rules of warfare. We will look at two such legal issues, namely, international laws of war, and the relation between national security and civil liberties.
International Laws of War
In modern warfare, international laws of war are treaties between various countries that provide a humanitarian framework for regulating a range of wartime issues, such as blockades, truces, the treatment of prisoners and the wounded, and the autonomy of neutral countries. There never has been a “world government” with the authority and power to oversee the activities and conflicts among the world’s countries. Since ancient times, individual countries determined their own military conduct during wartime, which was often very brutal as captured combatants were tortured and executed, and noncombatants were raped, pillaged, and enslaved. Over the centuries, though, there emerged some unwritten standards of humane warfare known as customary laws of war, which specifically aimed to reduce the suffering of noncombatants and the damage to nonmilitary targets. During the 19th century, international treaties were devised between countries to codify these standards.
The first and most famous of these treaties was the Geneva Convention of 1864, spearheaded by the founder of the Red Cross. Officially titled the “Convention for the Amelioration of the Condition of the Wounded in Armies in the Field,” it set guidelines for assisting wounded soldiers, the role of organizations like the Red Cross, and the protection of hospitals and ambulances. By 1949 it was revised three times, particularly to make provisions for maritime warfare and the treatment of prisoners of war and civilians. The following is one of the more famous parts of the Convention, which establishes the humane treatment of noncombatants and war prisoners:
Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat [i.e., “out of combat”] by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. [Geneva Convention 3, 1949, 3.1]
The rules of the Geneva Convention apply not only in situations of officially declared war, but also in “any other armed conflict” (ibid. 3.2). In recent decades, additional protocols were added to the Geneva Convention that extended its provisions to guerilla wars and wars of independence. Though the original Convention was negotiated by only 16 European countries, today virtually all of the world’s nearly 200 nations have officially agreed to the 1949 version of the Convention. Many countries, though, have not accepted the more recent provisions regarding guerrilla wars.
Another important series of international treaties is the Hague Conventions, which took place in 1899 and 1907. Two main aims of these conventions were to, first, reduce the amount of weaponry that countries could employ, and, second, ban especially brutal types of weaponry, such as asphyxiating gasses and expanding bullets. While they failed to reach an agreement on the first point, they succeeded with the second.
In the aftermath of World War I, in 1919 an international organization was established called the League of Nations to help avoid another massive war with such devastating consequences. It specifically aimed to provide a mechanism for diplomatically arbitrating disputes between countries and reducing armaments. It also established a collective security agreement, whereby an attack upon one member country would be considered an attack on them all. The League’s effectiveness was greatly weakened during World War II, and it was ultimately replaced with the United Nations in 1945, which today is the main international body responsible for maintaining world peace. The goal of the U.N., as set out in their Charter, is this:
We the peoples of the united nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom. . . . [U.N. Charter, Preamble]
Like the League of Nations, the United Nations devised procedures for diplomatically resolving disputes and thereby avoiding military conflicts.
Another important component of international laws of war concerns war crimes, that is, especially egregious violations of warfare conventions that are punishable by some governing body. The most famous war crimes trials were those in Nuremberg in 1945-6 that prosecuted 24 Nazi leaders, twelve of whom were given the death penalty. The Nuremberg trials established a set of guidelines called the Nuremberg Principles, which include a three-part definition of war crimes. They are (1) crimes against peace, such as when a country initiates a war of aggression, (2) conventional war crimes, which include mistreatment and killing of prisoners and noncombatants, and (3) crimes against humanity, which include “murder, extermination, enslavement, deportation” and “persecutions on political, racial or religious grounds.”
National Security and Civil Liberties
The ancient Greek playwright Aeschylus famously stated that “truth is the first casualty of war,” by which he meant that in times of war governments restrict and manipulate what its citizens can know about military operations. A more recent rewording of this is that “civil liberties are the first casualty of war.” Once a country is at war, the government immediately limits the freedom of its citizens in the name of national security. There are restrictions on free press, such as limiting the access of journalists and prohibiting the criticism of the government. There are more general restrictions on liberty and free expression, such as prohibiting war protests, arresting political dissenters, imposing curfews, monitoring phone and internet communication. The government might also have secret military tribunals in place of court trials, and they might intimidate the citizenry by increasing the police and military presence in one’s town. One common justification behind all of these civil liberty restrictions is that the enemy might be among us, and we need to prevent them from doing damage right here in our backyards. All countries have diverse populations, some more so than others, and it is naive to presume that every citizen or resident will support a government’s war effort. It’s also reasonable to assume that many will secretly work to undermine the government. By restricting civil liberties a government can minimize that threat. Another justification is that it’s easier for the government to focus on a war when its citizens are not challenging everything that happens. The more information and public debate there is about a government’s military strategy, the more the government will have to publicly justify every decision it makes. This can force delays and changes in military action, which might ultimately harm the war effort.
How bad, though, must threat to national security get before the government can crack down on civil liberties? In the United States, the litmus test is whether the action poses a clear and present danger to the public. This was first established by the Supreme Court in the case Schenck v. United States (1919). During World War I, a socialist organizer named Charles Schenck mailed 15,000 anti-war pamphlets to potential military draftees, urging them to not serve. He was arrested and convicted of espionage. Upon appeal, the Supreme Court upheld his conviction and argued that in times of war the government is justified in being more restrictive with civil liberties: “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight.” Whether in peace or war time, the main question is whether an action presents a clear and present danger to the public. The Court concluded that Schenck indeed violated a legitimate U.S. law against espionage by attempting to obstruct the military recruiting process.
Sometimes, though, the government may go too far when determining that an anti-war protest presents a clear and present danger to the public. In the same year as the Schenck case, the Supreme Court heard a similar one, Abrams v. U.S., where a political activist named Jacob Abrams was convicted of espionage for circulating pamphlets during World War I that called for resistance to the war effort and even revolution. While the Court upheld his conviction, one dissenting Judge argued that Abrams’s pamphlets posed no clear and present danger to the public, and Abrams was acting fully within his rights of free speech, even during that time of war. The Justice wrote, “nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.”
Perhaps the best example of where the U.S. government went too far by restricting civil liberties during war time is that of the internment of U.S. citizens of Japanese descent during World War II. Following the bombing of Pearl Harbor, the government suspected that some ethnic Japanese in the U.S. were disloyal, but there was no clear way to determine which ones. Consequently, over 100,000 ethnic Japanese on the U.S. West Coast were ordered to leave their homes and stay in detention camps. One such person, Fred Korematsu, resisted and, when arrested, he appealed to the Supreme Court. While the Court acknowledged the hardship that the detention placed upon the affected ethnic Japanese, they nevertheless ruled against Korematsu on the grounds that military urgency outweighed the liberty of the detainees:
Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger. [Korematsu v. U.S., 1944]
The ruling proved controversial and one dissenting Supreme Court Justice involved in the case called the decision “the legalization of racism.” In 1988 the U.S. government officially apologized for its actions against the detained ethnic Japanese during World War II, and in 1992 agreed to pay $20,000 in financial compensation to each detainee who was still living.
In times of war there is an inevitability of at least some conflict with civil liberties, since the urgency of military situations prevents a country from simply conducting business as usual. However, the government is not always in the best position to determine which restrictions are necessary, and the Japanese internment camps are a grave reminder of this. Weiss suggested that, when a country is at war, dissenters play an important role by creating a public dialog that forces us to consider whether it is truly necessary in the present situation to engage in humanity’s most brutal activity. This rationale also applies to dissenters who question the necessity of civil liberties restrictions during war. Through public dialog there is greater awareness of these threats, which will hopefully prevent the government from going too far.
COMMON ARGUMENTS PRO AND CONTRA
The Conservative Position
The conservative position on war is that many wars are justified, and extreme measures can be taken in warfare. The conservative view is often called “hawkish,” meaning that it advocates an aggressive approach to war. The main arguments for the conservative position are these.
1. Spreading democracy: Democratic countries have a moral responsibility to extend freedom throughout the world, and this often requires taking strong military stances against totalitarian dictators who oppress their citizens and threaten surrounding countries. A criticism of this argument is that, while democracies work well in economically developed countries, they are not particularly effected in poorer regions where populations less educated and dominated by centuries-old traditions of tribal and religious warfare. In these socially unstable regions, often only a totalitarian dictatorship can prevent the country from self-destruction, and our efforts to impose democracy on them through military force may do more harm than good.
2. Success at all costs: If we fight in a war, we should fight to win, and that means using as much force as needed to get the job done quickly. This may require massive bombing, unconventional weapons, harsh interrogation tactics, and civilian casualties. It makes no sense to fight a war with one hand tied behind our back, and, if we take a soft approach to military action, we risked prolonging the conflict and increasing the body count on both sides. A criticism of this argument is that even the toughest military tactics will not necessarily defeat an enemy that is resolved to win. This is particularly so when the enemy uses guerilla warfare tactics that are not easily countered with conventional military tactics.
3. Sacrificing freedom for the greater good: In times of war we all need to make personal sacrifices to assure military success, and this sometimes involves giving up some freedom. For the government to do its job properly, it needs support from its citizens, and it should not be hampered by public dissent that emboldens the enemy. Worse yet, we cannot allow enemy agents to secretly infiltrate us on our own soil; the government must know what is going on, and this may require secret surveillance and interrogation. A criticism of this argument is that the freedom of citizens is particularly vulnerable during war time, and a test of a true democracy is whether liberty is preserved in critical situations like this. Freedom of expression and the press are needed in war time to prevent the government from unnecessarily expanding the scope of a war or from engaging in the use of unjust military tactics, such as torture and weapons of mass destruction.
The Liberal Position
The liberal position on war is that few wars are justifiable, and warfare should be conducted with restraint and civility. The liberal view is dubbed “dovish” insofar as it advocates a peaceful and conciliatory approach to international conflict. The main arguments for the liberal position are these.
1. Questionable motives: The true motives behind many wars are not as pure as our government would have us believe. We have heard many times that through our military actions we help thwart evil dictators, stabilize fledgling democracies, block terrorist activities, and, on the whole, make the world a safer place for everyone. Upon closer inspection, though, we see that many of these wars were motivated by the desire to access a foreign country’s natural resources, create a new economic market for our domestic exports, or forcefully make a country our political ally. If the government openly stated these true motives, the citizens would probably not approve of military action. A criticism of this argument is that it is naive to expect an issue as complex as war to be directed by a single, pure motive. While governments will always present the noblest motives for going to war, the job of the press is to expose additional underlying motives. The job of citizens, then, is to determine whether on balance the war is justifiable.
2. Better alternatives: Wars create enormous amounts of suffering, and their outcomes are unpredictable; there are almost always nonmilitary alternatives to international conflicts and these should be pursued first. With global economies as interdependent as they are today, economic sanctions can be especially effective tools to keep belligerent countries in line. A criticism of this argument is that often we are dragged into international conflicts that are already military in nature. When our allies are attacked and ask for our help, we are obliged to help defend them. Civil wars erupt around the world with regularity, and our military may be needed to stabilize those countries. When genocide sweeps through a region, we may have no choice but to intervene militarily.
3. Evolving standards of decency: All countries should strive to make wars a thing of the past. While wars have always been with us, it does not have to be that way, and the sooner they disappear the better. But that day will never come until countries resist their warring impulses and seek peaceful solutions to their problems. As each new conflict arises, we should train ourselves to resist a military response as long as possible. If it happens that a military response is necessary, we should train ourselves to show restraint in our tactics to lessen the war’s brutality. A criticism of this argument is that the prospect of a peaceful and harmonious world rests upon each country having a sound economy, decent standard of living, and stable government. While European countries have achieved these goals, and consequently no longer fight with each other, the majority of the world’s countries are still economically underdeveloped and politically unstable. It thus may be centuries before most countries develop to the point that world peace is possible.
A Middle Ground
While conservatives tend to be military hawks and liberals doves, these ideologies often have little bearing on how conservative and liberal governments conduct themselves in times of war. Some of the bloodiest wars in U.S. history—the Civil War, World War II, and the Vietnam War—were all initiated by administrations with overtly liberal ideologies. Similarly, conservative governments are not necessarily quick to go to war. Dwight Eisenhower—a conservative U.S. president—warned against the potential abuses of U.S. military power. In a famous speech he described the dangers of the “military-industrial complex,” that is, the interrelation of the country’s military force and the industries that support it. On the one hand, Eisenhower argues, a strong military is a vital element in keeping the peace: “Our arms must be mighty, ready for instant action, so that no potential aggressor may be tempted to risk his own destruction.” On the other, however, the inertia of the military-industrial complex can easily undermine the normal democratic process and create a military conflict that would be better resolved through peaceful means:
In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist. We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals so that security and liberty may prosper together. [“Farewell Address”, 1961]
It is within Eisenhower’s recommendation that we might carve out a middle ground on the issue of war. We have not yet reached a stage in civilization where we can expect countries to abandon military aggression, and, to that extent, a strong military is important if for no other reason than to deter an outside attack. However, citizens should be immediately suspicious of a government’s claim that a war is necessary, or that the military needs to develop unconventional weapons, or that national security requires restricting freedom. In most cases the necessity will be exaggerated, and more peaceful and less intrusive alternatives may work better. This is particularly so with superpowers such as the U.S., whose military might dwarfs that of almost every other country. Through its superior power the U.S. can inflict a disproportionate amount of damage on the enemy. For example, during the Vietnam War, the Vietnamese suffered around 3 million deaths compared to around 50,000 U.S. deaths. In the Iraq War, as many as 1 million Iraqis may have been killed, as compared to about 4,000 U.S. military. With military power comes military responsibility, and that responsibility is best directed by “an alert and knowledgeable citizenry,” as Eisenhower words it.
READING 1: HUGO GROTIUS ON JUST AND UNJUST WARS (from The Law of War and Peace, 1625)
Unjust Wars (2.37.2-4)
There are some who have neither apparent reasons, nor just causes to plead for their hostilities, in which, as Tacitus says, they engage from the pure love of enterprise and danger. Aristotle gives this disposition the name of ferocity, and in the last book of his Nicomachaean Ethics, he calls it a horrible cruelty to convert friends into enemies, whom you may slaughter.
Most powers, when engaging in war, desire to color over their real motives with justifiable pretexts. Yet some, totally disregarding such methods of excuse, seem able to give no better reason for their conduct than the story told by the Roman Lawyers. A robber was asked what right he had to a thing that he had seized; he replied that it was his own because he had taken it into his possession. Aristotle in the third book of his Rhetoric, speaking of the promoters of war, asks, if it is not unjust for a neighboring people to be enslaved, and if those promoters have no regard to the rights of unoffending nations? Cicero, in the first book of his Offices, speaks in the same strain, and calls “the courage, which is conspicuous in danger and enterprise, if devoid of justice, absolutely undeserving of the name of valor. It should rather be considered as a brutal fierceness outraging every principle of humanity.”
Others make use of pretexts, which though plausible at first sight, will not bear the examination and test of moral rightness, and, when stripped of their disguise, such pretexts will be found filled with injustice. In such hostilities, says Livy, it is not a trial of right, but some object of secret and incontrollable ambition, which acts as the chief motivation. Plutarch said that most powers use the relative situations of peace and war as a currency to purchase whatever they deem useful.
By having before examined and established the principles of just and necessary war, we may form a better idea of what constitutes the injustice of war. As the nature of things is best seen by contrast, and we judge what is crooked by comparing it with what is straight. But for the sake of clarity, it will be necessary to consider main points.
It was shown above that fear of a neighboring power is not a sufficient ground for war. For, to authorize hostilities as a defensive measure, they must arise from the necessity which just fear creates. This involves fear not only of the power, but of the intentions of a formidable state, and a fear that amounts to a moral certainty. For this reason, we cannot approve of those who say that there are just grounds for war when a neighboring country constructs fortifications which may at some future time prove a means of trouble, while, at the same time, there is no existing treaty to prohibit such constructions, or their securing of a strong hold. . . .
The Just Means and Ends of War (3.1.1-2)
In the preceding books we considered by what persons, and for what causes, war may be justly declared and undertaken. This subject necessarily leads to an inquiry into the circumstances under which war may be undertaken, into the extent, to which it may be carried, and into the manner in which its rights may be enforced. Now all these matters may be viewed in the light of privileges resulting simply from the law of nature and of nations, or as the effects of some prior treaty or promise. But the actions which are authorized by the law of nature are those that first require attention.
In the first place, as it has occasionally been observed, the means employed in the pursuit of any object must, in a great degree, derive the complexion of their moral character from the nature of the end to which they lead. It is evident therefore that we may justly use those means, provided they be lawful, which are necessary to the attainment of any right. Right in this place means what is strictly so called, signifying the moral power of action, which anyone as a member of society possesses. On this account, a person, if he has no other means of saving his life, is justified in using any forcible means of repelling an attack, though he who makes it, as for instance, a soldier in battle, in doing so, is guilty of no crime. For this is a right resulting not properly from the crime of another, but from the privilege of self-defense, which nature grants to everyone. Besides, if anyone has sure and undoubted grounds to apprehend imminent danger from anything belonging to another, he may seize it without any regard to the guilt or innocence of that owner. Yet he does not by that seizure become the proprietor of it. For that is not necessary to the end he has in view. He may detain it as a precautionary measure, until he can obtain satisfactory assurance of security.
Discrimination (3.11.1, 8-13)
Cicero, in the first book of his Offices, has accurately observed, that “some duties are to be observed even towards those, from whom you have received an injury. For even vengeance and punishment have their due bounds.” And at the same time he praises those ancient periods in the Roman government when the events of war were mild, and marked with no unnecessary cruelty. . . .
Though there may be circumstances in which absolute justice will not condemn the sacrifice of lives in war, yet humanity will require that the greatest precaution should be used against involving the innocent in danger, except in cases of extreme urgency and utility.
After establishing these general principles, it will not be difficult to decide upon particular cases. Seneca says that “in the calamities of war children are exempted and spared, on the score of their age, and women from respect to their sex.” In the wars of the Hebrews, even after the offers of peace have been rejected, God commands the women and children to be spared. . . .
The same rule may be laid down too with respect to males, whose ways of life are entirely removed from the use of arms. In the first class of this description may be placed the ministers of religion, who, among all nations, from times of the most remote antiquity have been exempted from bearing arms. . . . In addition to these, there are those who devote their labor to honorable literary studies that are useful to mankind.
The catalogue of those exempt also includes farmers. Diodorus praises the Indians, who, in all their wars with each other, refrained from destroying or even hurting those employed in agriculture, as being the common benefactors of all. Plutarch relates the same of the ancient Corinthians and Megarensians, and Cyrus sent a message to the king of Assyria to inform him that he was willing to avoid molesting all who were employed in tilling the ground.
To the above catalogue of those exempted from sharing in the calamities of war, may be added merchants, not only those residing for a time in the enemy’s country, but even his natural-born, and regular subjects. Artisans too, and all others are included, whose subsistence depends upon cultivating the arts of peace.
More civilized manners have abolished the barbarous practice of putting prisoners to death. For the same reason, one should not reject the surrender of those who do so for the preservation of their lives, either in battle or in a siege.
One of the three following cases is required to justify anyone in destroying what belongs to another. (1) There must be either such a necessity, where an exemption is formed as must be supposed upon the original institution of property. For example, someone throw the sword of another into a river to prevent a madman from using it to his destruction. Still, he will be required to repair the loss, according to the true principles maintained in a former part of this work. (2) Or there must be some debt arising from the non-performance of an engagement, where the thing destroyed is considered as a repayment for that debt. (3) Or there must have been some aggressions for which such destruction does not go beyond the punishment deserved.
Now, if someone drives off some of our cattle, or burns a few of our houses, this can never be appealed to as a sufficient and justifiable motive for destroying the entirety of an enemy’s kingdom. Polybius saw this in its proper light, observing, that vengeance in war should not be carried to its extreme, nor extend any further than was necessary to make an aggressor justly make amends for his offence. It is upon these motives, and within these limits alone, that punishment can be inflicted. It is foolish, and even worse than foolish, to needlessly hurt another, except where prompted to it by motives of great utility.
But upon properly and impartially weighing the matter, such acts are more often regarded in a detestable light, rather than considered as the dictates of careful and necessary guidance. For the most urgent and justifiable motives are seldom of long continuation, and are often succeeded by weightier motives of a more humane type.
Please answer all of the following questions.
1. Define the following: conventional warfare, nonconventional warfare, conventional weapons, nonconventional weapons, limited war, total war.
2. Define the concepts of preemptive war, terrorism, and holy war.
3. What are Plato’s and Machiavelli’s reasons for thinking that war is inevitable?
4. What are Hegel’s and Bernhardi’s reasons for thinking that war is a necessity for social development?
5. What are the solutions that Dante, Erasmus, Kant and James give for abolishing war?
6. In just war theory, what are the five conditions of initially waging war (jus ad bellum)?
7. In just war theory what are the two conditions of conduct during war (jus in bello)?
8. What are the religious and pragmatic arguments for pacifism?
9. What is the free rider criticism and Weiss’s criticism of pacifism?
10. What are the two approaches to whether torture is justifiable?
11. What is the main problem with the rights theory criticism of torture under the ticking time bomb scenario?
12. What are the main international laws of war?
13. On the issue of national security and civil liberties, what were the issues involved in the U.S. Supreme Court cases of Schenck v. United States (1919), Abrams v. U.S. (1919), and Korematsu v. U.S. (1944)?
14. What are the criticisms of the three conservative arguments regarding war?
15. What are the criticisms of the three liberal arguments regarding war?
[Reading 1: Grotius on Just and Unjust Wars]
16. In the section on unjust wars, what does Grotius say about pretexts that countries commonly offer for going to war?
17. In the section on unjust wars, what does Grotius say about going to war based on fear alone?
18. According to Grotius, in the section on discrimination, which types of people should be protected during wars?
19. According to Grotius, in the section on proportionality, what are the only three justifications for destroying property when combating an aggressor?
20. According to Grotius, in the section on proportionality, what is the furthest that destruction should extend when combating an aggressor?
[Question for Analysis]
21. Pick any one of the following views in this chapter and criticize it in a minimum of 150 words. The view of war by Plato, Machiavelli, Hegel, Bernhardi, Dante, Erasmus, Kant, or James; one of the conditions of just war theory; one of the arguments for pacifism; one of the criticisms of pacifism; the ticking time bomb scenario; the ruling of one of the Supreme Court cases on war.