PUBLIC AFFAIRS QUARTERLY
Volume 11, Number 3, July 1997

ESTABLISHING LIABILITY IN WAR
Camillo Bica

Whatever their motivation and however sincere their intent, heads of state inevitably seem compelled to offer moral justification for a resort to war. In doing so, they betray their conviction that war⁽¹⁾ is, at least in theory if not in practice, rule governed. This essay will focus upon perhaps the most crucial of rules that govern how a just war may be fought, i.e., the jus in bello prohibition against the injuring and killing of innocents.⁽²⁾ While it is never in doubt that there are innocents in war, the guidelines established (whether by the "war convention"⁽³⁾ or by the myriad of international agreements and protocols) for identifying innocents are ambiguous, vague, and inexplicit.⁽⁴⁾ Consequently, national and military leaders have enjoyed an enormous latitude in interpreting the guidelines and in determining who may be targeted, injured, and killed during war. Usually, the dictates of military necessity have influenced such determinations.

It is the intent of this essay to provide substance to the guidelines for establishing liability during war. I will argue that only those individuals who actively and directly engage in the conflict may be categorized as combatants, and only Unjustifiable Combatants, i.e., those combatants who wage a war of aggression, are liable to be targeted, injured, and killed. All others, whether they are members of the aggressor nation's military, political elite, munitions workers, etc., are noncombatants and, in compliance with the jus in bello criterion, must be afforded immunity.

To make my case, I will, first, establish the demands of morality regarding the disposition of persons relative to the use of violence/deadly force in self-defense. Then, using these parameters as a paradigm, I will determine the disposition of individuals relative to the use of war in national defense. Such a strategy is both necessary and valid. It is necessary because normative ethical theory, on the level of the individual, is clearer and less corrupted by egoistic demands. It is valid because Just War Theory in general and the jus in bello criterion in particular makes the same demands, regarding the disposition of noncombatants, upon those who would use war in national defense as is made by "ordinary morality," regarding the disposition of innocent bystanders, upon those who would use violence/deadly force in self-defense. Consequently, no significant difference exists between the scope and application of the normative ethical principles that govern the behavior of those who act in defense of their rights as citizens and those who act in defense of their rights as individuals.⁽⁵⁾

I. ASSUMPTIONS AND TERMINOLOGY

Among the prima facie rights (relevant to this study) which a human being is recognized as possessing are the rights to life, to live in a nation that enjoys territorial integrity and political sovereignty, and to respond defensively if these rights are unjustly threatened or violated.⁽⁶⁾ The use of the defensive response of violence (to include the use of deadly force and war), however, for asserting these rights, is a morally justifiable act of self or national defense if and only if the guidelines established for its use by ordinary morality or Just War Theory are satisfied. If these necessary and sufficient conditions cannot be satisfied, however, the victims of the aggression are morally bound to opt for what may clearly be a less effective or more risky defensive response (flight, negotiation, appeasement, nonviolent resistance, etc.).⁽⁷⁾ Not all acts of self or national preservation, then, will be morally justifiable acts of self or national defense.

The terms Antagonist/Non-antagonist (on the level of self-defense) and Combatant/Noncombatant (on the level of national defense) will be used to denote whether an individual uses violence to injure or kill another human being or threaten the territorial integrity and political sovereignty of another nation.

The terms Liable/Non-liable will denote whether an individual has done anything to warrant loss or forfeiture of his claim against others, i.e., his immunity. One becomes liable, for our purposes, by unjustifiably threatening or violating the relevant rights of a non-liable human being. Consequently, the victim(s) and, perhaps, concerned third parties, may, by most accounts, injure and, if necessary, kill the liable aggressor(s), all things being equal, in justifiable self/other or national defense/humanitarian intervention.

The terms Justfiability/Non-justifiability will denote whether the use of violence is morally warranted in a particular situation. This determination will depend upon whether the individual(s) that is being targeted is liable or non-liable.

The terms Moral Culpability/Non-culpability will denote whether the Antagonist or Combatant is prosecuting the aggression knowingly - - with free will and consent - - or in ignorance or under duress.

Finally, the terms Accessory/Non-accessory will denote whether an individual, who is not herself acting violently, is sufficiently, directly or indirectly, linked to the violence - - either causally or supportively - - to warrant liability.

I have elected, in this essay, to use the concepts of culpability/non-culpability and combatancy/non combatancy in lieu of the concepts of innocence/non-innocence. I have done so in the interest of avoiding confusion and equivocation as the latter have, traditionally, served a dual function, i.e., first, to discriminate those who participate in the violence knowingly and from free will and consent from those who participate in ignorance or under duress - - what I will term its "responsibility usage" - - and, secondly, to discriminate those who participate in the violence from those who do not - - its "participation usage."

This essay will be concerned primarily with the use of violence from the point of view of self and national defense, i.e., as a response to aggression. I will also note occasions, however, when violence may be warranted from the point of view of retribution and justice, i.e., as a police action aimed at remedying an injustice, restoring possessions, ensuring just deserts, and in punishing the prosecutors of aggressions.⁽⁸⁾

II. SELF-DEFENSE

It is the function of acts of self-defense only to eliminate or ameliorate a real and immediate threat to one's life or well-being and not to seek out, apprehend, and punish those morally culpable individuals who are not Antagonists.⁽⁹⁾ Further, given the value we place upon human life, even that of an aggressor, the use of violence in self-defense is morally (and legally) warranted only in situations of last resort.⁽¹⁰⁾ With this in mind, consider the following illustration.

Assassin: Greg has been kidnaped by a radical religious cult. After intensive programming by a shrewd, manipulative, and diabolical cult leader, Greg believes that it is the will of God that he kill Peter-a former cult member turned whistle blower. After conferring with Edward, the cult tactician, regarding the best means of attack, Greg attempts to kill Peter who realizes that no defensive response other than shooting Greg would effectively eliminate his threat. Due to clever planning and positioning, however, getting a clear shot at Greg is impossible. Peter quickly determines, however, that if he shoots Mary, who happens to be driving by at that moment, her vehicle will careen out of control, strike Greg, and eliminate the threat.

As Greg, an Unjustifiable Antagonist,⁽¹¹⁾ poses a real, immediate, and unjustifiable threat to Peter's⁽¹²⁾ life, he is liable to be injured and killed in self and other-defense, all things being equal, despite his non-culpability for the aggression. Morally grounding Greg's loss of claim and subsequent liability is the fact that Greg violates Peter's rights.⁽¹³⁾ It is not, however, a moral act of self-defense for Peter to kill Mary, a Non-Antagonists Non-Accessory⁽¹⁴⁾ (though doing so may preserve Peter's life), as Mary is totally uninvolved in the aggression. Nor is it a moral act of self-defense for Peter to bypass Greg, make his way to the cult headquarters, in order to injure or kill accessories⁽¹⁵⁾ to the aggression, i.e., (1) the cult leader; (2) Edward (the cult tactician); (3) other cult members (who may enthusiastically support the assassination); (4) Bob (who works in the munitions factory that produces the cult weapons); (5) Joan (who delivers the weapons to the cult compound); and (6) Cyrus (who produces food for the cult).⁽¹⁶⁾ Morally grounding the non-liability of these individuals are the facts that: (1) they are Non-Antagonists - - not the direct and immediate source of the aggression (the source of the real and immediate threat in Assassin is not the cult leader, Edward, Bob, etc., but Greg), and (2) if Greg can be bypassed or eluded, and the real and immediate threat eliminated by evasion, then a critical justifying condition for the use of violence - - last resort - - has not been satisfied.

The complicity - - culpability - - of Accessories, while irrelevant to determinations of liability from the point of view of self-defense, is critical, however, to determinations of liability from the point of view of retribution. Such individuals, then, given their causal or supportive complicity in the aggression may be liable to be punished for their transgressions. It is the responsibility of the police force (and not the victim), however, to bring alleged evil doers to justice.

To sum up, liability from the point of view of self-defense is morally (and legally) appropriate if and only if one culpably or non-culpably unjustifiably aggresses or poses a real and immediate threat of aggression to a non-liable human being. All Non-antagonists - - including Accessories - - are non-liable from the point of view of self-defense and ought not, under pain of moral condemnation, be targeted, injured, or killed either besides or in lieu of the Antagonists. Such individuals may, however, be liable from the point of view of retribution, i.e., liable to be apprehended, tried, and, if convicted, punished after the fact.

III. NATIONAL DEFENSE

The above will be utilized as a precedent to establish the disposition of individuals relative to the use of violence, i.e., war, in national defense. All individuals, whether or not they are members of the military, who actively and directly prosecute a war, will be termed Combatants, i.e., the agents of violence. All Unjustifiable Combatants, i.e., individuals who wage a war of aggression,⁽¹⁷⁾ are liable to be injured and killed, all things being equal, by the Justifiable Combatants in national defense and humanitarian intervention. Morally grounding the Unjustifiable Combatants' loss of claim and subsequent liability is the fact that they wage an aggressive war against non-liables and, thereby, violate the latter's right to life and to live in a nation that enjoys territorial integrity and political sovereignty. The category of Noncombatant will include all others, i.e., all individuals, whether or not they are members of the military, who do not actively and directly prosecute the war, i.e., they are not the immediate agents of violence.

Given these parameters and the dictates of the jus in bello criterion of discrimination, the targeting, injuring, and killing of the following are not moral acts of national defense: (1) the national leadership; (2) the military leadership (not on the battlefield); (3) the non-warrior citizens of the aggressing nation (who may enthusiastically support the war); (4) the munitions workers; (5) the (non-warrior) military support personnel; and (6) the farmers, clothiers, opticians, etc. who manufacture goods used by the Combatants in prosecuting the aggression. Morally grounding the non-liability of these individuals is the fact that they are not the direct and immediate source of the aggression (the source of the real and immediate threat is not the national and military leadership, munitions workers, etc. but the Unjustifiable Combatants).

Some such individuals, however, because of their direct, indirect, causal, or supportive involvement in the aggression, are not without moral (and legal) blame. Designated Accessories, the national and military leadership (and perhaps some others), in contributing to the violation of the rights of those aggressed against, may be liable, not to be injured and killed during war, but to apprehension, trial and, if convicted, punishment from the point of view of retribution.⁽¹⁸⁾

To sum up, liability from the point of view of national-defense is morally appropriate if and only if one culpably or non-culpably unjustifiably aggresses or poses a real and immediate threat of aggression to non-liable human beings. All Noncombatants - - including Accessories - - are non-liable from the point of view of national defense and ought not be targeted, injured, or killed either besides or in lieu of the Combatants. Such individuals may, however, be liable from the point of view of retribution, i.e., liable to be apprehended, tried, and, if convicted, punished after the fact.

IV. POSSIBLE OBJECTIONS

While the non-liability, from the point of view of self-defense, of the Culpable Unjustifiable Accessory, i.e., the cult leader in Assassin, may have been recognized and incorporated into our common sense view of morality and into our legal system, one may argue that this is not the case, from the point of view of national defense, with the national and military leaders, the military support personnel, munitions workers, etc. These individuals (Unjustifiable Accessories) have, throughout much of the history of warfare, been targeted, injured, and killed with such frequency that their liability has, therefore, become regarded as customary and morally acceptable.

This argument from custom, while compelling, ultimately fails. As morality is normative rather than descriptive, the fact that Combatants have and continue to employ such tactics - - targeting Accessories - - does not establish its moral correctness. This point becomes evident if we consider that Noncombatant Non-accessories have also commonly been targeted, injured, and killed throughout much of the history of warfare. It is clear to most, with perhaps the exception of the War Realist,⁽¹⁹⁾ that because nations have and continue to victimize such individuals during war, the frequency of the brutalization does not morally justify its occurrence.

Because we agree, one may rebut, that violence against Noncombatant Non-accessories is clearly immoral, such a consensus does not, necessarily, establish the immorality of the violence against the Culpable Unjustifiable Accessories. There exists, after all, a profound moral difference between the two categories in that, although the latter are not themselves the agents of violence, they, unlike the former, are essential to the war's prosecution. If so, then, aren't such individuals, given their complicity and moral guilt, even more deserving of being targeted, from the point of view of national defense, than, say, the adolescent conscript who is morally non-culpable and, in an important way, a victim himself?

While I recognize: (1) that the national and military leadership, unlike many, perhaps most, of the warriors on the battlefield, is culpable, i.e., acting knowingly and not under duress; (2) that the national and military leadership, the munitions workers, etc., are linked causally or supportively to the aggression; and (3) that the aggression will, quite probably, cease should the national and military leadership, the munitions workers, etc., be killed; I also recognize that it is not the function of acts of national defense to seek out, apprehend, and punish, morally culpable individuals, but only to ameliorate or eliminate the pressing problem at hand, i.e., the real and immediate aggression. And the agents of the real and immediate aggression - - those actually engaged in the hostilities - - are not the politicians, generals, munitions workers, military support personnel, etc., but the Unjustifiable Combatants.

One may object further that, under my formulation, certain forms of behavior that are insidious and, potentially, highly destructive (Hitler/Saddam Hussein in their bunkers planning world domination) do not warrant liability from the point of view of national defense. This objection also fails as insidiousness and acting destructively are not sufficient criteria for being targeted, injured, and killed in war. We do not, for example, see war as a fitting response to the insidious and highly destructive behavior of large scale polluters.

Further, to anticipate another possible objection, the fact that the deaths of certain individuals - - in this case the national and military leadership - - may (1) eliminate the Combatants' resolve to pursue the aggression further; (2) bring the war to a quick and successful conclusion; and (3) lessen the projected overall casualties, does not morally sanction their being targeted. This becomes evident if we consider a situation in which the injuring and killing of other Noncombatants will have similar results. Suppose, for example, that raping the spouses and killing the infant children of the Unjustifiable Combatants will cause a goodly number of warriors to abandon the aggression and flee to their homeland to ensure the security of their loved ones. Clearly, even if such tactics may achieve victory, shorten the war, lessen the overall number of sustained casualties, etc., we do not, for that reason, morally sanction their use. Here at least numbers do not count.

V. THE SCOPE OF LIABILITY FROM THE POINT OF VIEW OF RETRIBUTION

I have argued that it is only the Unjustifiable Combatants who are liable from the point of view of national defense, and that those who may be linked, directly or indirectly, causally or supportively to the aggression - - Accessories - - may be liable from the point of view of retribution. As I am not content in this study merely to transfer vague suspicions of liability from one purview to the other, it remains to establish the scope of liability from the point of view of retribution. To do so, I will return, as has been my approach throughout this study, to the realm of self-defense for guidance.

It is clear, in Assassin, that liability, from the point of view of retribution, as an Accessory is warranted only for the cult leaderand, perhaps, Edward (the cult tactician). Other cult members, who may have cheered Greg on; Bob, who manufactured Greg's weapon; Joan, who transported the weapon to the cult compound; and Cyrus, who produced the food that nourished Greg; despite their "supportive involvement" in the attempt on Peter's life, are too far removed from the aggression to warrant liability from the point of view of retribution.

As there is, on the national level, no morally significant difference between the munitions worker's, et al, relationship to the war, and Bob's, et al, relationship to Greg's aggression against Peter, by parity of reasoning, liability from the point of view of retribution as an Accessory is warranted only for the national and military leadership. Lacking, then, any morally relevant justification why individuals should bear any more moral responsibility for their "supportive involvement" in the one case than in the other, one must conclude that the statuses of all such individuals are analogous, i.e., they are non-liable both from the points of view of national/self-defense and retribution.

VI. CONCLUSION

In this essay, I have offered a specific and concise framework for liability during war. As such, I have argued that the categories of Combatant and Accessory should be construed narrowly, i.e., in the case of the former, as those who are actually engaged in the hostilities and/or those whose engagement is imminent and, in the case of the latter, as those whose activities are crucial to the initiation, instigation, planning, and carrying out of the hostilities. Further, only those deemed Unjustifiable Combatants are liable, from the point of view of national defense, to be injured and killed, all things being equal, during war. All others - - including Unjustifiable Accessories - - are non-liable from the point of view of national defense and must, under pain of moral condemnation, be discriminated and afforded immunity. And finally, all Culpable Unjustifiable Combatants, should they survive the war, and all Culpable Unjustifiable Accessories, are liable to be apprehended, tried, and if convicted, punished from the point of view of retribution. The latter may clearly include the national and military leaders, but not munitions workers, military support personnel, transporters, etc.

Now, as with the practical application of any conceptual framework, there can be, realistically, no rigid borders that clearly and invariably demarcate the realm of liability from that of non-liability. As such, gray areas will remain and, tragically, gray areas in war may be fraught with danger and risk. However, as with any profession or pursuit that attempts to balance a respect for the rights of human beings with upholding justice and maintaining order utilizing force and violence, sometimes increased risks and danger may be a role specific responsibility.⁽²⁰⁾

While the consequences of the conservatism of my interpretation may impact significantly upon the manner in which a just war may be conducted, so be it, as it would be disingenuous to expect that the demands of morality may be manipulated or distorted whenever one wanted moral license to engage in a particularly brutal and destructive enterprise or to use a particular means of prosecuting such an enterprise.

School of Visual Arts

NOTES

I am indebted to Robert Holmes for his helpful comments on an earlier draft of this essay.

1. While volumes have been written regarding the difficult and much debated question of what constitutes war, for purposes of this discussion, war will be defined as government-sponsored violence or the real and immediate threat of violence; whether offensive or defensive, justifiable or unjustifiable.

2. For a discussion of Just War Theory's other criteria for the moral use of war in national-defense, see, among others, Holmes, Robert L., On War and Morality, Princeton, NJ: Princeton University Press, 1989) pp. 146-182, and Miller, Richard, Interpretations of Conflict (Chicago, IL: University of Chicago Press, 1990), pp.13-50.

3. See Walzer, Michael, Just and Unjust War (New York: Basic Books, 1977), pp.44-47.

4. See Bica, Camillo C., Just War Theory and a Practical Pacifism, Ph.D. diss., City University of New York, 1995, pp. 66-108.

5. I argued against what has been termed a "role specific morality," i.e., that the demands of morality may vary depending upon one's role in society, in Just War Theory and a Practical Pacifism, pp. 37-58.

6. In this essay, I will accept the Hohfeldian view that a right is a claim against others and, as such, the correlative of a duty. See Hohfeld, Wesley N., Fundamental Legal Conceptions, ed. W. W. Cook (New Haven: Yale University Press, 1919).

7. For an insightful discussion of this issue, see Thomson, Judith J., The Realm of Rights (Cambridge, MA: Harvard University Press, 1990 ), pp. 105-122.

8. Distinguishing the perspective of self-defense from that of retribution or justice builds upon the groundwork established by Robert FuIlinwider, "War and Innocence," in International Ethics, ed. Beitz, Cohen, Scanlon, and Simmons (Princeton, NJ: Princeton University Press, 1985), pp. 90-97.

9. See Bica, Camillo C., Just War Theory and a Practical Pacifism, pp. 15-36, 109-144.

10. The rest of the criteria for the use of violence/deadly force in justified self-defense are as follows:

a. There must be a real, immediate, serious, and unjustifiable threat/attempt upon the physical and/or psychological well being of a non-liable.

b. Since the injury to, or loss of life of, any human being, even an assailants' is regrettable and tragic, the least destructive, yet efficacious, of the morally viable defensive responses must be utilized.

c. The act of self-defense is directed at the assailant and at no one else.

d. The act of self-defense is proportionate in severity and intensity to the aggression.

e. The use of violence/deadly force lasts only until such time as the aggression or the real and immediate threat of aggression has been eliminated.

f. Any foreseeable injury/death of innocents as a consequence of the use of violence/deadly force in self-defense must be unintended and proportionate.

See Bica, Camillo C., Just War Theory and a Practical Pacifism, pp.45-36.

11. One who, without just cause, injures, kills, or poses a real and immediate threat to the life and well-being of a non-liable human being. An Unjustifiable Antagonist may be culpable (injures or kills knowingly and with intent) or non-culpable (injures or kills unknowingly or under duress).

12. Peter will be classified as a Justifiable Antagonist, i.e., one who, with just cause, injures, kills or threatens, all things being equal, the life/well being of a liable human being.

13. As Peter will be injured or killed unjustifiably whether the Antagonist acts knowingly, from free will and consent, or in ignorance, and under duress, fault and/or agency is not a necessary condition for infringing Peter's claim. For an insightful defense of this position, see Thomson, Judith J., The Realm of Rights, pp. 37-78.

14. One who neither injures, kills, or threatens the life and well-being of a non-liable human being nor is in any way, directly or indirectly, causally or supportively, linked to the aggression.

15. All individuals who: (1) do not themselves act, or threaten to act, violently so as to physically or psychologically injure or kill a non-liable human being, and (2) are directly or indirectly, causally or supportively, linked to the occurrence of the unjustifiable violence or the threat of unjustifiable violence.

16. This is in spite of the fact that: (1) Greg is non-culpable, i.e., acting under intense programming; (2) the assassination is planned, initiated, and motivated by the cult leader; (3) the aggression is possible due to Edward's planning and Bob's enthusiastically furnishing the cult with weapons; (4) the threats to Peter and to others will, in all probability, be eliminated should the cult leader, Edward, and Bob be killed; and (5) at least the cult leader and Edward, are morally culpable for their actions.

17. National Aggression will be defined as unjustifiable government-sponsored violence aimed at, among other things, disrupting or destroying the territorial integrity and political sovereignty of a nation and injuring or killing its citizenry.

18. Until the functioning apparatus for international justice - - the world court, international police, United Nations, etc. - - becomes more proficient, it may remain the responsibility of the military to effect their capture. While such adventures may, at times, look similar to war - - violence may, all things being equal, be justifiable - - we would not characterize such a quasi military police force, in the performance of their mission, as being engaged in acts of national defense.

19. War/Political Realists are those who question the relevancy of morality to considerations of government and national security. The realm of international relations, such theorists maintain, including the use of war, is governed only by considerations of expediency, national egoism, and self-interest. For the classic treatise of this view, please see, On War, Karl Von Clausewitze, (New York: Penguin Books, 1968). For an opposing view see On War and Morality, Robert L. Holmes, pp. 50-82.

20. Law enforcement may be another such profession/pursuit.