Against the background of the wars being waged in Iraq and Afghanistan, a loaded debate is being conducted in the United States and in the international community on the “Just War” theory developed by the American philosopher Michael Walzer. The implications of this discussion not only touch on the actions of the U.S. military or NATO forces – they also have an impact on the military actions taken in the Israeli-Arab conflict.
The rules of war are divided, at their foundation, into two branches. One is “justice in war” (jus in bello) and determines just conduct during war, thus referring to the question of what is allowed and what is forbidden to soldiers during combat. The second branch, “justice of war” (jus ad Bellum), determines the conditions under which a state has a legal right to declare war. The moral theory, known as “The Just War Theory,” is built in a similar manner: in the context of jus in bello it clarifies the moral rights and the moral obligations of soldiers during armed conflict. In the context of jus ad Bellum this theory seeks to answer the question of the circumstances under which the state has a moral right to go to war.
The International Law and the interpretation of it offered by Michael Walzer in his classic 1977 book Just and Unjust Wars (republished in 2006 by Basic Books, New York) are the foundation of the philosophical discussion on morality in war, on the morality of the use of force in war, and the link between the just war theory and the rules of war defined by international law.
Walzer wrote his book in the wake of two wars experienced by United States citizens: World War II and the Vietnam War. The involvement of the United States in controversial wars in the last two decades – from the first Gulf War, through the war in the Balkans, and especially to the wars that continue even now: the second Gulf War, the war in Afghanistan and the fighting in Pakistan – have led many to reexamine Walzer’s classic theory. Therefore, a sharp debate is currently being conducted around the theory of “just and unjust wars.” The implications of this discussion do not only touch on the conduct of the U.S. military or NATO forces: the questions that Walzer deals with impinge directly on issues regarding the military actions taken in the Israeli-Arab conflict and the justifications offered for them.
In the following paragraphs I would like to briefly discuss two issues. The first is the doctrine that Waltzer calls “the moral equality of soldiers.” International law confers rights and imposes obligations on armed forces regardless of the legality of the war they are engaged in. In other words, the law applies equally to all soldiers whether they are fighting a legal war or a criminal war. Soldiers fighting an illegal war are, therefore, allowed to harm enemy soldiers who are fighting a just war. Moreover, when fighters fall captive, the law forbids treating them as criminals, even if they fought a war defined as a crime against peace. The second doctrine, whose importance cannot be exaggerated, is known as “civilian immunity.” Accordingly, armies are forbidden to deliberately kill civilians. The intentional killing of citizens is forbidden even if the victory of the just side is dependent on it. The end, says international law, does not justify the means.
According to the prevailing reading in Just and Unjust Wars, Walzer suggests one explanation for both doctrines. Accordingly, the prohibition to kill civilians and the permit to kill soldiers in war are a direct derivative of the ethics of self-defense. As we know, killing a man who seeks to kill another (pursuer) is permitted even without due process if this killing is necessary in order to save the victim (the pursued). It must be noted that sometimes self-defense involves killing people not yet proven guilty and, if proven guilty, not meriting the death penalty. However, the right to self-defense is vested only against the aggressor. If, for example, in order to survive the gunfire of a malicious aggressor the victim has no choice but to use an innocent person a human shield, this would be considered murder not justified by the natural right to self-defense; indeed, the victim may not kill an innocent person even if this act is necessary to save his life. According to the prevailing reading in Walzer, a soldier at war presents a threat by virtue of his being armed; as such, he loses his right not to be attacked. That is: those threatened by him may defend themselves against him. Civilians, in contrast, are not, Walzer argues, a threat, and thus are innocent in every respect. The killing of civilians is also prohibited in circumstances where this is necessary to achieve a crucial military target.
Harsh criticism of Walzer’s interpretation of the rules of war comes from the camp I call ‘purist.’ This criticism is based on very simple insight: soldiers fighting a just war defend themselves, their families and their homeland. As such, say the purists, these soldiers are innocent even if they are holding weapons. According to this approach, if the soldiers taking part in a just war realize their right to self-defense, then their opponents, whose attack was illegal from its inception, do not have the right to self-defense. The conclusion of the purists is that the combatant has a duty to refuse to participate in an unjust war, because killing in such a war is considered morally equivalent to murder.
In response to the purist criticism, I recently suggested a different reading of Walzer’s classic theory. I claim that the principles by which soldiers and civilians should behave in war are not derivative of the ethics of self-defense. According to my suggestion, in order to understand the moral equality of soldiers, we must examine situations in which people lose their right not to be attacked, but reserve their right to self-defense under a contract they accept upon themselves. Such a transfer of rights occurs in the boxing ring: both sides give up on their right not to be attacked by the other, but reserve the right to defend themselves against this attack. This, I suggest, is the essence of being a soldier: on joining the army, soldiers receive rules whose social meaning allows them to attack the enemy troops without checking whether they are fighting a just war. Such an arrangement is possible only if the enemy soldiers are allowed to participate in war without checking whether the war is just. This arrangement, determined by international conventions, casts an array of restrictions on combat forces, at the center of which is the prohibition to kill civilians and prisoners of war. According to my reading of Walzer’s classic work, a theory of just war must deal also, perhaps primarily, with the moral status of such conventions. The theory must explain how soldiers’ acceptance of the convention creates moral equality between them, even when there is no such equality between the parties for which they fight.