Ethics and War: A Critical Intervention

Introduction

War places an enormous strain upon ethics, openly violating principles that would normally be considered sacrosanct. Soldiers are required to intentionally kill their adversaries, engaging in activities that also expose noncombatants to unthinkable levels of harm. While pacifists argue that this death and destruction is never legitimate and realists have scoffed at attempts to limit this violence, just war theorists have sought to carve out a middle ground, arguing that war may be morally permissible providing that certain conditions are met. ¹ Typically, these conditions have been divided into two distinct categories: jus ad bellum and jus in bello. The former governs when states or other legitimate authorities may wage war, insisting that they must have a just cause, the right intentions and a probability of success. Even then, war should be the last resort and its costs must be proportionate when compared against the anticipated gains. The latter concerns what is permissible on the battlefield, insisting that soldiers discriminate between combatants and noncombatants, abide by the principle of proportionality and only cause collateral harm to noncombatants when it is absolutely necessary to do so. War may be unavoidable but it is hoped that this basic principle will help to minimise the suffering of both combatants and noncombatants. ²

There is a long and rich history to just war but its principles have come under renewed scrutiny in recent years from scholars working inside and outside the tradition. Revisionists, such as Jeff McMahan and Helen Frowe, have sought to rethink the relationship between jus ad bellum and jus in bello by advancing an individualist (rather than collectivist) account of ethics. ³ While they seem to speak the same language – invoking the principles of proportionality, discrimination and necessity – they reach very different conclusions to their more traditionalist counterparts. Crucially, they conclude that not all combatants deserve to be killed and not all noncombatants deserve to be protected. ⁴ At the same time, a plethora of poststructuralist, postcolonial and feminist thinkers have sought to rethink the relationship between ethics and war and re-politicise debates about killing. ⁵ Rather than acting as a restraint on the violence inflicted in battle, they argue that these ethical codes can have the opposite, normalising acts of violence that would usually be considered ethically unconscionable. Most controversially, they suggest that the rules and regulations meant to protect noncombatants has the peculiar effect of leaving them profoundly vulnerable to death and injury, by making it acceptable to kill civilians providing that this harm is not intentional and not disproportionate. Despite all the purported protections, the civilian population often finds itself to be profoundly killable, their lives eminently disposable. ⁶

This article reviews three recent books on the ethics of war that all seek to critically re-interrogate the way we think about ethics and war. The first is Law and Morality at War by Adil Ahmad Haque, a legal theorist with obvious sympathies to just war. Working within the analytic tradition, his book seeks to develop a normative framework that can be used to interpret, evaluate and, if necessary, reform the laws of armed conflict. As we shall see, the book remains wary of recent revisionist trends and remains wedded to the idea that the destructiveness of war can be reduced if belligerents follow the rules and understand the moral principles that underpin them. The laws of armed conflict, he argues, provide soldiers with an ‘imperfect guide’ to the complex ethical dilemmas they might encounter in battle. ⁷ War and the Politics of Ethics by Maja Zehfuss and Ethics as a Weapon of War by James Eastwood adopt a radically different approach, warning that the invocation of ethics may actually enhance the destructiveness and deadliness of war. Drawing on the work of poststructuralists, such as Jacques Derrida and Michel Foucault, and feminists, such as Judith Butler and Lauren Berlant, they attempt to re-politicise these debates. While both books have helped to open up areas of the debate that were previously off-limits, they also raise some interesting questions about what should be done: can something be salvaged from existing ethical codes or must we rethink the entire endeavour? If these existing codes are to be abandoned, what might an alternative ethics of war look like?

Morality and the Law

Law and the Morality of War sits firmly within the just war tradition but has a specific focus on the relationship between ethics and law. While Haque acknowledges that legal codes cannot make war just, noting that innocent people will continue to die needless deaths and suffer superfluous injuries, he argues that they can make wars less unjust than they would otherwise be. Combatants who try to follow these laws ‘may still inflict wrongful harm – at the very least by mistake – but they will inflict less wrongful harm than they would without the law to guide them’. ⁸ As a scholar who straddles the moral and legal divide, Haque is not interested in simply documenting what the law says about certain matters, but developing a normative framework that can identify and assess the most serious injustices perpetrated in war and develop new rules and regulations that can prevent them from occurring. As such, his moral and legal project has three interrelated aims: it involves defending established legal principles from attempts to distort, corrupt or undermine them; it involves creating new legal principles that are capable of recognising wrongs that have long been ignored; and it involves interpreting ambiguous legal principles – such as proportionality and precaution – in their ‘morally best light’. In practice, this means that any ambiguities or uncertainties in the law should be clarified using the appropriate moral concepts to help ‘give the law more determinate content, combatants clearer guidance, and civilians more robust protection’. ⁹

One thing that immediately distinguishes this book is its rejection of the idea that war occupies a special place in the moral order, distinct from the normal rules and regulations that govern normal life. Haque argues that moral claims in war are continuous with moral claims outside of war, and that the ethical injunction against killing remains strong. However, the ban on killing can be overridden or infringed if the ‘moral reasons in favour of infringing them outweigh the moral reasons against infringing them’. ¹⁰ While there is a tinge of utilitarianism to this formulation, it is important to stress that Haque is no consequentialist. His ideas are rooted firmly in the rights-based approach, which stipulates that individuals are only morally liable to attack ‘if they unjustly threaten to kill or seriously injure innocent people, or are sufficiently responsible for similar unjust threats posed by others’. ¹¹ According to this defensive view, those ‘who threaten to kill or seriously injure innocent people – directly, indirectly, or jointly – are not wronged if they are killed to avert the threats they pose’. ¹² Incidental harm of individuals not liable to attack may be permissible as an unintended side-effect of an attack, but only if it will ‘prevent opposing forces from inflicting substantially greater harm to one’s own forces or civilians in current or future military operations’. ¹³ The purpose of the law is to help combatants better conform to their moral obligations, providing them with clear guidance on what is permitted and what is not. ¹⁴

His defence of established legal principles against attempts to undermine them leads to some fascinating discussions on issues such as civilian immunity, proportionality in attack, and human shields. On many of these issues, Haque adopts a far more restrictive view than the law currently demands. He argues, for example, that it is morally impermissible to target enemy combatants who do not perform a combat function as they have done nothing that renders them liable to attack. ¹⁵ On the issue of noncombatant immunity, he rejects those who argue that civilians could be liable for attack if they advocate for an unjust cause, provide financial support to a militant group, or supply them with weapons. He argues that ‘if killing other people is ordinarily the gravest moral wrong that we can commit, then doing so requires an exceptionally strong moral justification’. ¹⁶ Donating small sums of money to a militant group or hiding weapons in their home is, he argues, hardly sufficient to transform them into legitimate targets. ¹⁷ In a stinging rebuke to certain revisionist tendencies, he argues that ‘just war theory must not become a forum for devising ingenious arguments seeking to show that intentionally killing defenceless civilians, though always unlawful, is often morally permissible’. ¹⁸

Few scholars have contributed as much to recent debates about the ethics of war as Haque, and Law and Morality at War continues in this fine tradition, touching on everything from the principle of proportionality to the targeting of human shields. Straddling the moral and legal divide, Haque succeeds in correcting the misperceptions that many moral philosophers have about the law, including the presumption that it permits combatants to fight for an unjust cause when it really only immunises them against prosecution. ¹⁹ Haque also sets out a number of ways that the law could be improved and his suggestions are often pretty radical – not least his contention that it is ‘objectively impermissible to kill opposing combatants whom one could safely capture, not because they are defenceless or already effectively captured, but because killing them is unnecessary’. ²⁰ At times, the book strays a little too far into the realms of analytic philosophy, devising moral propositions that are so far removed from the realities of war that it is difficult to see how they could work in practice. However, I am not convinced by his claim that even partial compliance with these moral and legal codes can help make war more just by ensuring that soldiers ‘commit less wrongful killings than they would otherwise’. ²¹ As we shall see, the notion that ethics acts on war from the outside to help limit the death and destruction that is caused has become increasingly difficult to sustain. Rather than limiting the death and destruction that is caused, these codes can often help to normalise, legitimise or excuse the violence inflicted on the battlefield.

Enabling War

While Haque sets out to defend the idea that just war theory and the laws it inspires can minimise the suffering of war, Maja Zehfuss and James Eastwood provide us with a radically different approach to thinking about the relationship between ethics and war. In War and the Politics of Ethics, Zehfuss traces the way in which contemporary practices of war have been re-imagined as an ethically appropriate response to the suffering of others in the post Cold War world, despite the obvious risks this entails to both combatants and noncombatants. No longer waged in pursuit of narrow self-interest, she argues that contemporary Western war is ostensibly fought on behalf of others, protecting those who are threatened with obscene human rights abuses and liberating those subjected to oppression. ²² But this desire to help those in need presents us with a dilemma because ‘what we do risks killing those we ostensibly seek to protect’. ²³ War remains destructive and deadly, but this ‘apparent enthusiasm for ethics is often uncritically and incorrectly taken to mean that contemporary western war is constrained by ethics and therefore somehow less violent, more benign’. ²⁴ The aim of this book, then, is not to highlight the disconnect between rhetoric and reality, but to show how a particular understanding of ethics is bound-up in the way war is both envisaged and practiced, while drawing attention to the contradictions and incongruities that haunt this ethical imagination. ²⁵

The book begins with a careful deconstruction of the just war framework that Haque sought to defend, focusing specific attention on how just war theorists seek to produce certain kinds of killing as morally permissible while insisting that others remain morally impermissible. ²⁶ As we have already seen, just war theorists attempt to resolve this dilemma by drawing a distinction between the intentional killing of combatants (morally permissible), the intentional killing of noncombatants (morally impermissible) and the unintentional killing of noncombatants (morally permissible in some circumstances). ²⁷ Despite these elaborate ethical contortions, she argues that just war theory fails to provide an adequate rationale for the unintentional killing of noncombatants, dismissing these deaths as accidents or tragedies rather than predictable outcomes of the actions they defend. ²⁸ This may seem like a relatively insignificant point, but Zehfuss argues that this failure to adequately account for the killing of civilians threatens to derail the entire project, making it impossible to defend war as ethically good. Moreover, the invocation of tragedy seems to suggest that even just war theorists ‘remain unpersuaded that killing in the name of protecting people is good’. ²⁹

While Haque has sought to cover these cracks with a more elaborate set of rules – interpreting these ambiguities in their ‘morally best light’ in order to reduce the suffering of noncombatants – Zehfuss argues that we need to fundamentally rethink our approach to ethics and war. She does not believe that ethics should be seen as a set of pre-determined rules, decided in the abstract, that can help guide us through the murky world of politics. Instead, she argues that ethics should be seen as an experience of the impossible, an encounter that ‘requires stepping beyond the normative order’. ³⁰ To illustrate this point, she recalls Derrida’s discussion of Abraham, who was instructed by God to sacrifice Isaac, his only son. In this dilemma, there is no ethically pure outcome that does not entail some sort of betrayal. Moreover, it is not entirely clear how this kind of quandary could be settled in the abstract. There are simply no rules that could help us get out of this dilemma. ³¹ Biblical tales of filicide may not seem relevant to contemporary debates about war, but the scenarios facing soldiers are often structurally similar. At checkpoints, for example, soldiers often have seconds to decide whether the car speeding towards them is hostile. Shoot too soon and they risk killing an innocent civilian; shoot too late and they risk being killed. As Zehfuss explains,

The question of ethics arises precisely when we do not (and indeed cannot) know what to do, when we feel drawn into competing obligations that we are not able to fulfil all at the same time. Much like Abraham, we have to decide, and so do the soldiers: the rules and principles of ethics fail to provide them an answer. ³²

Rather than trying to resolve these ethical tensions, Zehfuss focuses on her attention on how the dominant ethical imaginary works to reinforce ‘the fiction that the harm-inflicting aspect of war can increasingly be overcome’. ³³ Examining the politics of precision bombing, for example, she warns that we have been seduced into thinking that this fortuitous coming together of technological know-how and ethical conduct can help reduce the destructiveness of war, ensuring that we only kill those who we intend to kill. ³⁴ But this fantasy of precision warfare seems to overlook the fact that even the smartest bombs have quite considerable blast areas and will occasionally malfunction. Even when they land where they are supposed to land, civilians may still be killed as a result. As Zehfuss puts it, ‘“precision” in terms of effectively hitting the target is not the same as “precision” in terms of not hitting anything else’. ³⁵ She is equally unimpressed with the deployment of social scientists alongside combat troops into order to make war more culturally sensitive. While there is an obvious appeal to the idea that wars can be won by winning peoples’ hearts and minds, cultural knowledge has been appropriated not to enhance our understanding of the local community but to legitimise highly intrusive forms of intervention. ³⁶

War and the Politics of Ethics seeks to re-politicise debates about war by showing how existing approaches tend to obscure the violence that is inflicted on the bodies of both combatants and noncombatants alike while foreclosing broader debates about the use of force. Broaching the subject from a decidedly Derridean frame, Zehfuss concludes that the ‘problem is that ethics is cordoned off against the real world, against politics, that it is produced as desirable and true precisely on the basis of its exclusion from anything that might endanger its purity’. ³⁷ For her, this is a problem that cannot be easily fixed. We cannot simply dispense with our existing ethical frames and create a better alternative because such an alternative would reproduce the same problems, seducing us once again into ‘an impossible expectation of our own harmlessness and indeed heroic ability to help others’. ³⁸ At times, Zehfuss seems to suggest that a more relational view of ethics, which recognises the undecidable, incalculable and impossible nature of these demands, would help mitigate the worst of these tendencies. Details of what this ethics might look like still need to be fleshed out but this book has done a remarkable job of drawing attention to the way in which ethics can work to enhance the destructiveness of war.

Militarising Ethics

The idea that ethics may enhance the destructiveness of war is an argument that is echoed in Ethics as a Weapon of War by James Eastwood. Unlike the other books, this text focuses specific attention on the way in which ethics has been used by militaries – in this case, the Israeli Defence Forces (IDF) – to justify their actions. Beginning with the IDF’s claim to be ‘the most moral army in the world’, Eastwood combines elements of Michel Foucault’s work on governmentality and Slavoj Žižek’s work on ideology to suggest that ethics has become ‘a crucial part of the way in which war-fighting and war-preparation are made to seem normal and desirable’. ³⁹ To illustrate his point, Eastwood identifies five ways that ethics has been enlisted by the IDF. First, he argues that it has been used as a way of transforming recruits into a disciplined fighting force that is convinced about the ‘righteousness of the army for which they fight’. ⁴⁰ Second, it has been used as an ideological tool to normalise the violence inflicted by the IDF by positioning it as a morally good actor in a deeply immoral world. ⁴¹ Third, ethics has become an effective decision-making device in counterinsurgency operations, where soldiers are expected to adopt a population-centric approach to waging war. ⁴² Fourth, it was been used as a way of consolidating a specific gendered and racialised militarist identity at a time when this identity has been called into question by growing numbers of female soldiers and recruits from different ethnic backgrounds. ⁴³ And finally, ethics has been used as a way of diverting attention away from the occupation by blaming individuals for any transgressions. ⁴⁴

One of the great strengths of this book is the way in which Eastwood has combined his theoretical innovations with a detailed empirical analysis of how ethics has been utilised by the IDF. The book opens with an anecdote about General Avi Gil, who caused quite a stir at the officer training school he commands when he decided to teach cadets about the work of Breaking the Silence – an NGO opposed to the occupation, staffed by IDF veterans – as opposed to the normal military texts. ⁴⁵ The decision was criticised by commentators on the right, but praised by the Executive Director of Breaking the Silence, who argued that the unfiltered testimony of soldiers serving on the frontline might encourage officers to ‘go back and carry out the mission for which they enlisted to the IDF: to defend the state, not to occupy and oppress’. ⁴⁶ The decision to incorporate the testimony of former soldiers could be seen as a triumph of ethics against unchecked militarism, but Eastwood is suspicious of the political or ideological work this testimony is doing in debates about war, suggesting that the testimony has been re-appropriated to ‘help the IDF improve and fight better’. ⁴⁷ The emphasis on ethical conduct during officer training is not an outcome of a more ‘benevolent moral attitude to Israel’s enemies, but… part of an ensemble of governing technologies designed to address a range of motivational, organisational, and ideological problems’. ⁴⁸

While the inclusion of this testimony brings certain kinds of violence to the fore, Eastwood argues that it is often stripped of its wider political significance. Recalling one discussion he witnessed at the Nachshon Pre-Military Academy, Eastwood describes how recruits discussed whether soldiers ought to return a watermelon an undocumented Palestinian labourer had left behind after being stopped and searched at a checkpoint in the West Bank. ⁴⁹ He notes that the recruits tended to focus on relatively trivial matters of military ethics – what should be done with the misplaced watermelon – rather than the violence of occupation itself. The fact that the labourer was not permitted to work and subjected to arbitrary stop and search measures was taken as a given. He argues:

for the Palestinian who lost a watermelon, the deliberations of Israeli soldiers about whether to eat it are immaterial. What actually cost him the watermelon was a regime of confinement and surveillance preventing him from moving freely between home and work. ⁵⁰

Eastwood recalls another controversy at the Rabin Pre-Military Academy involving a group of soldiers who had served during Operation Cast Lead. During a discussion about their experiences, an argument erupted about whether the soldiers should have cleaned the houses they had occupied before returning them to their owners. ⁵¹ While the audience got bogged down in relatively trivial ethical concerns, Eastwood argues that the violence of occupation, including the destruction of more than 3,500 homes and the shooting of innocent people, was almost completely obscured. ⁵²

The book is rich with this kind of empirical analysis, but it is the theoretical dimension that is the most innovative. Critically engaging with Foucault’s work on technologies of the self, Eastwood traces the emergence of a new kind of militarised humanity or militarist subjectivity, arguing that this ‘ethical education is primarily concerned with shaping soldiers as ethical subjects, particularly through the ascetic practices of self-examination and above all through testimony solicited from soldiers themselves about their military experiences’. ⁵³ When the IDF first introduced ‘The Spirit of the IDF: Basic Values and Principles’ – the ethical code that governs the conduct of troops – it contained three parts: a preface that outlined the moral purpose of the IDF, a set of basic values and definitions, and 34 detailed rules intended to help soldiers navigate their way through specific ethical dilemmas. ⁵⁴ When the code was revised a few years later this final section was abandoned on the grounds that it was not complex and risked transforming soldiers into automatons, following the rules laid out for them by others. ⁵⁵ Instead, soldiers were encouraged to cultivate a specific kind of ethical subjectivity with the help of various ascetic practices, learning from their mistakes in the past so that they could better respond in the future. ⁵⁶

Eastwood offers us a vivid, thought-provoking and meticulously researched account of how ethics can be enlisted to enable and enhance the destructiveness of war, reinforcing the concerns raised by Zehfuss and outlining others she had missed. Ethics as a Weapon of War is certainly one of the most original, provocative and empirically detailed books on the relationship between ethics and war, providing us with an innovative set of theoretical tools to make sense of the way in which ethics has become ‘integral to the way in which militarism has developed, transformed, and re-entrenched itself’. ⁵⁷ While Eastwood remains open to the idea that another less violent ethics is possible, he remains attentive to the way in which even the most critical endeavours can be co-opted by militarism. In a fascinating discussion of Breaking the Silence – an organisation whose testimony has helped to draw attention to the suffering of Palestinians and expose Israeli war crimes – Eastwood argues that the emphasis on individual transgressions can work to obscure the broader practices of violence that render Palestinian lives so disposable. ⁵⁸ The fight for an anti-militarist ethics is likely to be fraught with difficulties and may end up reproducing the same problems it is trying to undo.

Conclusion

All three books make valuable contributions to the literature on ethics and war, helping to reinvigorate debates about the violence that is inflicted on the battlefield. Convinced that the principles of just war and the legal conventions they have inspired can help to reduce suffering in war, Haque provides a convincing account of why existing rules should be respected and how they could be made even more robust. As an analytic philosopher, there is an obvious emphasis on conceptual clarity and argumentative rigour but – unlike some of his peers – he remains attuned to the messiness of contemporary practices, as his recent interventions on human shields have shown. ⁵⁹ And in these more applied pieces, we certainly catch a glimpse of how ethics can be used and abused by those seeking to gain an advantage in battle. Nevertheless, there is a growing sense that ethics – or a particular kind of ethics – may be part of the problem, enabling practices that might otherwise seem unconscionable while helping to obscure the death and destruction that results. As Zehfuss shows, the principles that are meant to protect noncombatants or justify interventions on their behalf often end up objectifying and devaluing their lives, rendering their bodies disposable, their lives eminently losable. At the same time, Eastwood traces how the military is able to co-opt the ethical agenda in service of profoundly militarist ends, using it to discipline both the bodies of soldiers and dissent against its actions. As Eastwood explains, ‘a critique couched in moral terms can be easily stripped of its political content and turned into a feature of ethical pedagogy in support of militarism’. ⁶⁰

These books will certainly help to reinvigorate debates about ethics and war, debates that can often feel a little detached from the horrors of contemporary practices of violence. They also raise important questions about what is to be done. Can the basic principles of just war theory be improved with a few tweaks here and there – or have they become so complicit that they must be discarded entirely? Haque certainly seems optimistic that something can be salvaged but the others remain ambivalent. While Zehfuss hints at a more relational understanding of ethics, Eastwood seems to hold out hope for the possibility of an anti-militarist ethics that could draw ‘attention to the political realities underpinning the use of military violence, pointing out the ways in which these realities can promote militarism’. ⁶¹ Neither provides us with any ready-made solutions and some readers may find this a little frustrating but they both provide us with an opportunity to think afresh, to pursue new lines of inquiry that were previously foreclosed. What would happen if we dispensed with the idea of an autonomous moral agent and we began with a radically interdependent view of ethics instead? ⁶² What would happen if we began with the embodied experiences of those who live and die on the battlefield rather than a set of abstract moral principles? ⁶³ Can we still invoke these principles – deliberately, knowingly, ironically – to condemn particularly egregious acts of violence or would this gesture simply reproduce the problems outlined above? These texts may not provide us with any obvious answers but they will certainly help to open up the debate.