The moral equality of combatants
The moral equality of combatants

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The moral equality of combatants

5 The implications of McMahan’s account

The first time that you grasp McMahan’s account the implications should strike you as thunderous. In the blurb for his book, McMahan’s mentor Derek Parfit points out that McMahan’s account shows just how difficult it is to fight a just war. The consequences for the moral responsibilities of actual combatants are profound. McMahan is clear about the implications of his views in an interview he did for this course, which you should listen to next.

Activity 7

In order to consolidate your understanding of McMahan’s position you should listen to the audio recording ‘McMahan against the moral equality of combatants’.

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Transcript: ‘McMahan against the moral equality of combatants’

Jon Pike
Hello, I’m Jon Pike. I’m the author of the book on The Ethics of War , and I’m here with Jeff McMahan, who is Professor of Philosophy at Rutgers University, to talk about killing in war. Jeff, can I start by asking you, in Killing in War , you talk quite a lot about the reigning theory of just war. Could you say what you mean by the reigning theory, and perhaps what’s wrong with it?
Jeff McMahan
What I meant by the reigning theory is what I now tend to call the traditional theory of the just war, which has been dominant for several hundred years in the western world. It’s a theory about the morality of war that has two distinct components: one doctrine about when it’s permissible to go to war; another doctrine about what it’s permissible to do in war. And I think most people are agreed that those are, in some sense, distinct questions. But what’s really characteristic of the traditional theory is that it claims that these two dimensions of the morality of war are completely separate and distinct in that the principles governing the resort to war really apply only to states and their political leaders, they don’t actually apply to the soldiers or combatants themselves, and it’s only the rules governing the conduct of war that apply to the combatants. These rules are supposed to be neutral between the side that is fighting rightly and the side that is fighting wrongly. And what that means, according to the traditional theory, is that combatants who are fighting for unjust aims don’t actually do anything wrong in fighting in such a war provided that they obey these neutral rules, and the neutral rules are things like: don’t kill civilians; treat prisoners of war well, and that sort of thing. They’re rules that supposedly anybody can follow, whether their aims in the war are just aims or unjust aims. And it provides a symmetrical account of the morality of killing in war. Soldiers on both sides are morally liable to attack; that is, soldiers on both sides are legitimate targets of attack but also, because of that, soldiers on both sides are permitted to kill soldiers on the other side, so it’s completely symmetrical between the two sides. And that’s what’s most distinctive about what I call the reigning theory of the just war, the traditional theory. And it has informed the development of international law, which has the same view about legality that the traditional just war theory has about morality; that is to say, that in the law of foreign conflict, it’s not illegal for soldiers to fight in an illegal war. The people who do something wrong when an illegal war is fought are the political leaders or the state.
Jon Pike
So, this is what’s meant by the moral equality of combatants?
Jeff McMahan
Yes. The idea that combatants on both sides are moral equals in the sense that they have the same rights, the same permissions, the same liabilities, and so on. There’s no distinction between them, and I think you asked me what’s wrong with the theory, and I think that’s the main thing that’s wrong with the theory. I think that the moral equality of combatants just can’t be true. The idea that you’ve got people who are fighting for a justified goal and people who are fighting for an unjustified goal, and they are each other’s moral equals and are in a morally symmetrical position, vis-à-vis one another just seems to me completely implausible. It has no plausibility outside the context of war, and so defenders of the traditional theory have to say that when a war occurs, an entirely new and different morality comes into effect, and that seems to me also quite implausible. I just don’t see how what is permissible to do in war can be completely divorced from what the aims of the war are; that is, the permissibility of killing people can’t be entirely distinct from the reasons why you’re killing people.
Jon Pike
You said that there are no circumstances outside war in which we have this kind of picture of two opponents being morally equal. One of the images that people use who push the moral equality of combatants is something like a boxing match: that you have two people getting into the ring; that they have the same rights to hit each other, inflict harm on each other. So, is that a relevant example outside war that explains something of this idea of moral equality?
Jeff McMahan
It’s an analogy to which some people have appealed, and what some people claim is that war is actually like a boxing match in that the combatants on both sides fight somehow voluntarily and, in doing so, they waive their right not to be attacked by combatants on the other side. Some argue that this is inherent in the notion of a soldier or combatant. It’s part of the role of a soldier that he consents to be a legitimate target of attack on the other side. I think there’s a lot wrong with that view, although I should have said, when I made the claim that this symmetrical picture of defensive action has no plausibility outside of war, that there are a few examples of this sort, like boxing and, possibly in the old days, duelling, where consent by both parties somehow legitimates what the other side is doing. But, in war, it’s not the case that both sides are really fighting voluntarily in the relevant sense; that is to say, the people who are fighting in defence against unjust aggression never really had a choice about whether some people were going to be harmed or not. They find themselves in a situation in which either they and their compatriots are going to be harmed or they have to harm the wrongful aggressors. So, their participation in the war really is no more voluntary than my engaging in self-defence is if somebody comes and attacks me. Of course, I can choose not to try to fend off my attacker, but that’s pretty unlikely, and it’s not really plausible to say, when I engage in self-defence when somebody’s trying to kill me, that I’m doing this kind of fully voluntarily; that this is totally a free choice on my part. The real asymmetry here is that the wrongful aggressors can choose whether some people are going to have to be harmed or nobody has to be harmed. That’s up to them, but once they’ve engaged in wrongful aggression, they’ve imposed this forced choice on the other people; namely, it’s a choice about who’s going to be harmed, the victims or the aggressors, and, normally, people resolve that dilemma by engaging in self-defence and, in doing so, I don’t think that they implicitly, or in any other way, grant the wrongful aggressors permission to attack and then kill them. That seems to me preposterous.
Jon Pike
So, the relevant analogy would not be something like a boxing match, but something like being attacked on the streets and resisting that attack, and it would be very wrong to say that someone who resisted an attack from a mugger had voluntarily engaged in conflict with them?
Jeff McMahan
The claim is somehow that in engaging in defence, they would be giving up their right not to be attacked by the other because when they attack the initial aggressor, in self-defence, they now pose a threat to the initial aggressor, and that’s what somehow makes the situation symmetrical. And that’s what I claim has no plausibility outside the context of war, except in these rare circumstances like boxing or duelling, in which people have some further aim that they’re trying to achieve through the conflict that they both agree to try to achieve or resolve through combat.
Jon Pike
So, here’s two pictures. One is the boxing match. The other is someone being assaulted. And if we think about war on the picture of the boxing match, then we can think about the rules governing boxing that apply equally to each party’s not hitting below the belt and so on. But if that’s the wrong analogy, then it’s wrong to think about the rules governing fist fights in the streets on the basis of a boxing match. It’s a different scenario altogether with different rules that ought to cover it. So, how ought we to think about the Jus in Bello conditions on the basis of your different account of the moral status of combatants?
Jeff McMahan
Well, we’d have to have different interpretations of the in Bello rules. The standard three rules governing the way wars are supposed to be fought are, first of all, the requirement of discrimination, which says that one should intentionally attack only people who are legitimate targets, and it’s always wrong intentionally to attack people who are not legitimate targets, and the traditional theory interprets that to mean that it’s permissible for combatants to attack other combatants, but not permissible for combatants to attack non-combatants; that is, combatants are legitimate targets, non-combatants are not legitimate targets. The other two principles are the principle of proportionality, which says something like the harms inflicted by an act of war shouldn’t be excessive in relation to the good to be achieved through the act of war. That condition, I think, is really quite impossible for the traditional theory to articulate in a coherent way, and that’s because what the traditional theory has to do is to weigh the harms that an act of war would cause against something that’s supposed to justify those harms. Normally, when we think about proportionality and self-defence, what we are thinking is that the harm that a defending agent inflicts both on the threatening agent and on innocent bystanders shouldn’t be excessive in relation to the good of self-preservation. But, in the traditional just war theory, when people are fighting for unjust aims, what are the goods that can be achieved through their action in war, that can offset the harms that they’re going to cause to innocent people? Well, I think there really are no such goods. So, what the traditional theory has to say is that the proportionality requirement in war is a requirement not to cause harm to civilians that’s excessive in relation to the military advantage to be gained through the act of war. And the problem with that idea is that military advantage, in itself, isn’t a good thing. It has value only in relation to the goals for which military advantage is instrumental; and if those goals are bad and wrong, then the military advantage is bad and, therefore, military advantage can’t, in itself, justify harms caused to innocent people as a side effect. I haven’t mentioned the third requirement, which is necessity, but, basically, what I’m trying to say here is that I think that the traditional theory’s three principles of conduct of war are all badly mistaken in the way that they’re interpreted by the traditional theory.
Jon Pike
Can I ask you about an example here that comes up in the literature, and it’s an example raised by Michael Waltzer, and that’s of the German general Erwin Rommel, who is cited as a case of, if you like, a good Nazi or a soldier on the unjust side who fought according to the rules of war, and he’s supposed to be an example of something like moral equality, or, at least, the ability of military personnel on an unjust side to fight in accordance with the Jus in Bello conditions. Now, is it the case that, whenever Rommel fought, whenever he sent tanks into battle or whatever, because he was advancing an unjust cause, the cause of the Nazi war machine, that he was fighting unjustly on your view?
Jeff McMahan
Yes, that is exactly what I think. I do not think that Rommel acted permissibly. I don’t even think he acted admirably or honourably. He’s like a housebreaker who has a code that says, ‘Well, when we break into houses and steal things, we don’t cause unnecessary harm to the inhabitants and we don’t burn the house down and don’t torture the animals and that kind of thing, while we’re doing it.’ In other words, he’s somebody who’s engaging in completely wrongful action but obeys some rules that do constrain the wrongful activity in desirable ways; so one of the things that Rommel wouldn’t do was to execute prisoners on certain occasions. That’s certainly better and more admirable than executing prisoners, but it doesn’t do anything to justify his actual military action; it just makes him less bad than many of the other Nazi commanders.
Jon Pike
So we can think of Rommel, on your account, as a murderer, not as someone who simply fought in an unjust cause according to the rules of war. There are no strongly extenuating circumstances for him?
Jeff McMahan
Well, that’s maybe putting it a bit strongly, because the understanding of the morality of war that was dominant at that time was the traditional theory that I have been attacking, and it doesn’t condemn Rommel as long as he obeys the rules. And of course he knew that, so, subjectively, from his point of view, he thought he was acting permissibly and acting honourably by obeying the rules, and that isn’t characteristic of murderers. That is, we have a mens rea requirement for a charge of murder – that is, a guilty mind. Now, I’m not going to try to explain all that that involves, but Rommel was not pursuing his aims for self-interested reasons or that sort of thing; he thought he was fulfilling his moral duties as a soldier. So I wouldn’t want to say he was a murderer, but what I can say is that when he was leading tanks in battle and that sort of thing, he was acting wrongly. And whether he had some good excusing conditions for that is another question.
Jon Pike
But to push the implications of your view not in a historical case but in the world we’re in now, the conclusions are pretty dramatic, aren’t they? That people who go to fight are responsible for the justice of the cause in which they fight, not simply for working within the rules governing the conduct of war? And if they’re fighting in an unjust cause, they act impermissibly; they kill wrongfully; they are responsible to some extent for that killing, and that applies to all combatants. That’s a pretty dramatic change from the standard understanding of the morality of war. What practical consequences follow in terms of changing the rules of war and the laws governing war from that view?
Jeff McMahan
Well, I think the main practical consequences of peoples coming to accept that view would be a greater reluctance on the part of soldiers to fight in unjust wars, and I think that’s very much a good thing. That is, if the view for which I have argued is the correct view, it’s no longer the case that soldiers can comfort themselves when they go off to war with the thought that if this war turns out to be unjust, they still won’t have done anything wrong by fighting in it as long as they obey the rules. And that’s one of the things that have made it easier for governments to fight unjust wars. That is, I see the traditional theory as in a sense colluding with wrongful aggressors in making it easier for them to fight unjust wars by making it easier for soldiers to fight with a clean conscience, which, in my view, shouldn’t be so clean. If people were to recognise that it is actually wrong to fight and kill people for the sake of goals that are unjust and wrong, then I think a certain proportion of people would be very reluctant to fight. Most soldiers do find it important to be able to believe that what they’re doing and what they’re risking their lives for is actually something that is morally right, and if they can’t believe that, and if they’re not supported by the traditional theory’s reassurance that even if the war is an unjust war, they won’t be doing anything wrong, then maybe they’ll be led to resist fighting in unjust wars, and that would make it harder for governments to initiate unjust wars, and that would mean that there would be fewer unjust wars, and that’s what I ultimately hope will happen.
Jon Pike
That’s a powerful view but there’s a fairly straightforward objection that arises from the slogan ‘He who hesitates is lost’. That if combatants are making their minds up about the morality of the cause in which they fight, that’s going to have an efficiency loss for any state that is under attack, that is needing to get its war machine, if you like, in place to defeat an attack. And, one of the reasons for thinking that soldiers shouldn’t spend a great deal of time thinking about their moral responsibilities is that we need an efficient, defensive war operation, and we need to avoid these kind of functional losses. So, there’s an efficiency argument, isn’t there, for devolving responsibility upwards to generals and statesmen, and holding them responsible for the justice of going to war, and letting soldiers think simply about the rules governing conduct in war?
Jeff McMahan
Yes, I think you’re right about that, and I think that there are genuine trade-offs here. There may be some sacrifice in efficiency for the sake of making sure that we’re getting it right and not fighting an unjust war. My own view is that it’s quite unlikely that soldiers will actually have serious doubts about wars that urgently need to be fought and that are genuinely just wars. Part of the reason for that is that soldiers have always had a strong tendency to believe what their government tells them to believe – that their own country can’t be a wrongful aggressor. Most people are patriotic. They believe that their own country is a good country. They’re reluctant to believe that their leaders could be engaged in wrongful aggression. I’m fairly confident that probably most Nazi soldiers, for example, believed that what they were doing was right. So, this is something that it’s actually quite hard to overcome, and it’s unlikely to be overcome in the case in which the war actually is just, particularly if it’s a war of national self-defence. When invaders are crossing the borders, you’re very unlikely to sit and wonder long and hard about whether your defensive war against the invader is a just war. On the other hand, if the war is being fought half a world away in some remote country that you’ve never even heard of before, and where the people that you’re fighting against seem to be sheltered and protected by the people among whom they live and move, then you might have doubts about these things. So, it’s much more likely that doubts and hesitations would arise in the case of genuinely unjust wars than it would in the case of genuinely just wars. One more point I might make in response is that wars do persist over time, so that it’s only initially that there may be an urgent need to mobilise to avoid defeat. In the early moments of a war as well, that’s when it’s, of course, harder to judge. After a war has been in progress, far more information is available and there’s usually less urgency about continued mobilisation and that kind of thing, and then I think that the trade-off between efficiency and trying to avoid the continuation of an unjust war is more favourable to the aim of avoiding the continuation of an unjust war than it is to the need to maintain efficiency.
End transcript: ‘McMahan against the moral equality of combatants’
‘McMahan against the moral equality of combatants’
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