The difference uniforms make: Collective violence in criminal law and war

Philosophy and Public Affairs

Volumn 33, Issue 2, 2005, Pages 148-180

  Kutz, Christopher ^a  

^a NONE

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EID: 33645343503     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.2005.00028.x     Document Type: Article

References (22)

1. Based loosely on Taylor v. Superior Court, 3 Cal. 3d 578, 477 P.2d 131 (1970). 2. 1949 Geneva Convention relative to the Treatment of Prisoners of War, Art. 118. (Future citations to the Geneva Conventions will be of the form GPW 118.) 3. I draw upon the "facts"offered by the government in the Yasser Hamdi case. See "Declaration of Michael H. Mobbs,"Special Advisor to the Under Secretary of Defense for Policy, filed in Hamdi v. Rumsfeld, No. 2:02CV439 (E.D. Va). The Supreme Court has since ruled that U.S. citizens taken on foreign battlefields are constitutionally entitled to a legal forum in which they can contest the facts governing their legal status. Hamdi v. Rumsfeld, No. 03-6696, 542 U.S. (2004) accessible at < http://caselaw.lp.findlaw.com/ scripts/getcase.pl?court+us&vol+000&invol+03=6696gt;. If honored by the government (unlikely at this writing), this ruling would bring U.S. practice with respect to its own citizens back into conformity with Article 5 of GPW, which requires adjudication of all dubious cases by a "competent tribunal."U.S. practice for non-U.S. battlefield captures does not yet conform to even the weak combatancy status hearing requirements of GPW 5. 4. Raymond Aron, On War (New York: W. W. Norton, 1968). 5. GPW 4(A)(2)(b); 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (PI), Art. 44 (3). Under PI 1(4), only persons involved in interstate conflicts or "conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination"have access to the relaxed standard of combatancy of PI 44(3). In addition, GPW 4(A)(6) extends battlefield privileges to citizens who, as a whole, rise up as a foreign invader arrives. This "levée en masse"clause is almost never triggered, and would not be triggered by partisans resisting an occupation. Non-privileged combatants may be killed on the battlefield, as well as be prosecuted after conquest for their belligerency. 6. A "substantial step"is the Model Penal Code's rule for attempt liability, Sec. 5.01(1)(c). 7. The United States calls these "unlawful combatants."See, e.g., Ex parte Quirin, 317 U.S. 1, 31 (1942). One of the pernicious features of the term "unlawful combatants"is that it effectively conflates crimes like killing civilians with not wearing a uniform in combat. Another is that it concludes, rather than leaving open, the question whether they enjoy any privilege to kill. 8. Currently, 146 states have ratified Protocol I, though many have made reservations to Art. 44. Given the number of ratifiers, some argue that PI 44 (like common articles 3 of the Geneva Conventions, which lays down general limits to violence in all conflicts) now has force as a universal, customary (rather than treaty-based) norm. See
2. Antonio Cassesse, "The Geneva Protocols of 1977 on the Humanitarian Law of Armed Conflict and Customary International Law, "Pacific Basin Law Journal 3 (1985): 55-118, at pp. 72-73.
3. Special Forces soldiers may have dressed distinctively, however, in the garb of the militias with whom they were affiliated. If so, and given a reasonably generous interpretation of the requirement of GPW 4(a)(2), which requires that combatants wear "a fixed distinctive sign,"then they would be lawful combatants. Ironically, however, this reading is denied by the United States officially, as part of their ground for not treating captured Taliban as POWs. See
4. W. Hays Parks, "Special Forces Wearing of Non-Standard Uniforms, "Chicago Journal of International Law 4 (2003): 493-547, at pp. 496-98.
5. These developments are nicely surveyed by
6. Herfried Münkler, "The Wars of the 21st Century, "International Review of the Red Cross 85 (2003): 7-22.
7. Civilian contractors, for example, routinely operate surveillance aircraft, provide direct logistical support for weapons systems, operate combat-zone radar equipment, and fly armed drug interdiction efforts in collaboration with the U.S. military. Many of these roles seem close enough to the criterion of "direct participation"in the hostilities to render them combatants under GPW 4. For a survey of this phenomenon, see Peter Singer, Corporate Warriors (Ithaca, N.Y.: Cornell University Press, 2003). As Singer points out, the new mercenaries can contribute to social peace (as they did in Sierra Leone, at least until their contract expired) as well as to escalate conflicts between weak states that would not otherwise be able to engage in sophisticated levels of violence. 12. An early, important philosophical discussion of this point is by Thomas Nagel, "War and Massacre,"in his Mortal Questions (New York: Cambridge University Press, 1979), pp. 53-74. I am also indebted to
8. Jeff McMahan, "The Ethics of Killing in Wars, "Ethics 114 (2004): 693-733,
9. These norms further proscribe certain disproportionate or indiscriminate killing means, for example poisonous gas. See, e.g., Hague Convention of 1925, Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare; Declaration of 1899 Declaration on the Use of Bullets Which Expand or Flatten Easily in the Human Body. 14. See Michael Walzer: "It is perfectly possible for a just war to be fought unjustly and for an unjust war to be fought in strict accordance with the rules."Just and Unjust Wars, 3d ed. (New York: Basic Books, 2000), p. 21. This formulation, of course, leaves it ambiguous whether any strong substantive normative value attaches to the formal criterion of "playing by the rules."See also
10. Gabor Rona, "Interesting Times for International Humanitarian Law: Challenges from the 'War on Terror',"The Fletcher Forum of World Affairs 27 (2003): 55-74, at pp. 67-68:
11. SeeTheodore Meron, Bloody Constraint: War and Chivalry in Shakespeare (New York: Oxford University Press, 1998), as well as Allan Rosas, The Legal Status of Prisoners of War (Helsinki: Suomalainen Tiedeakatemia, 1976), pp. 44-84. 16. The phrase is
12. Samuel Scheffler's, "Individual Responsibility in a Global Age, "Social Philosophy and Policy 12 (1995): 219-36, at p. 222.
13. See Jean Bodin, Bodin: On Sovereignty, ed. Julian Franklin (New York: Cambridge University Press, 1992), Bk. I, Ch. 8, "On Sovereignty."18. "For although one can receive law from someone else, it is as impossible by nature to give one's self a law as it is to command one's self to do something that depends on one's will."Bodin, Bk. I, Ch. 8, [360-61], p. 12. 19. See Geoffrey Parker, The Military Revolution: Military Innovation and the Rise of the West 1500-1800 (Cambridge: Cambridge University Press, 1988), pp. 71-72; "Uniforms,"in The Oxford Companion to Military History, ed. Richard Holmes (New York: Oxford University Press, 2001), pp. 931-35;
14. Toni Pfanner, "Military Uniforms and the Law of War, "International Review of the Red Cross 86 (2004): 93-130, at pp. 95-99.
15. See Münkler, "Wars of the 21st Century,"pp. 14-16. 21. "From all this it is clear that the principal mark of sovereign majesty and absolute power is the right to impose laws generally on all subjects regardless of their consent."Bodin, Bk. I, Ch. 7. 22. Jean Jacques Rousseau, "The Social Contract,"Bk. I, Ch. 7, par. 10, in The Social Contract and Other Writings, ed. Victor Gourevitch (New York: Cambridge University Press, 1997), pp. 50-51. 23. Rousseau, Social Contract, Bk. I, Ch. 7, par. 1 (p. 51). 24. Rousseau, Social Contract, Bk. I, Ch. 4, par. 9 (pp. 46-47). 25. Rousseau, Social Contract, Bk. I, Ch. 4, par. 10 (p. 47). 26. Rousseau, Social Contract, Bk. I, Ch. 4, par. 10 (p. 47). 27. What I have called in other work a "participatory obligation"to do one's part in a collective project to which one is committed. See my
16. my "The Collective Work of Citizenship, "Legal Theory 8 (2002): 471-94.
17. Compare George Fletcher, Romantics at War (Princeton, N.J.: Princeton University Press, 2002). Fletcher argues that Rousseau's conception of war is essentially Romantic, a form of self-expression by an organically united people. While Fletcher is right that Rousseau's thought featured prominently in later Romantic conceptions of peoples and their self-expression (as, for example, in J. G. Herder), his reading ignores the Enlightened and contractarian aspect of Rousseau's own conception of sovereignty, as well as Rousseau's view of the contingent nature of a politically united people. 29. Hence conscripts in authoritarian regimes might be seen as doubly impunible: As individuals they may have a claim of duress, and they lack any collective citizen responsibility. This does, however, assume that duress is true in fact (i.e., that conscripts will be killed if they do not kill) and that it excuses even killing, which is generally not true in Anglo-American law. See McMahan, "Unjust Wars,"p. 700. 30. McMahan also rejects traditional jus in bello principles and argues that individual soldiers in unjust wars bear moral responsibility for what they do. Although, as I elaborate below, I agree that individual soldiers may bear moral responsibility, one still needs to argue for the legitimacy of punishing combatants for their (morally) impermissible killings. Impunity, in other words, is not the same as justification or moral permissibility. 31. See, e.g., Gabor Rona, a Legal Advisor to the ICRC, in "Interesting Times,"p. 57: "[H]umanitarian law is a compromise. In return for these protections, humanitarian law elevates the essence of war-killing and detaining people without trial-into a right, if only for persons designated as 'privileged combatants', such as soldiers in an army."32. They may also have been strategic miscalculations, at least in Europe, where there is little evidence that they made a difference to already quickly declining German power. See, e.g., Michael Sherry, The Rise of American Air Power: The Creation of Armageddon (New Haven, Conn.: Yale University Press, 1987), p. 260. 33. J.J.C. Smart, "An Outline of a Theory of Utilitarianism,"in Smart and Bernard Williams, Utilitarianism: For and Against (New York: Cambridge University Press, 1973). 34. For doubts about its lawfulness, though not about its prudence, see
18. Louis Henkin, "Kosovo and the Law of 'Humanitarian Intervention',"American Journal of International Law 4 (1999), accessible at < http://www.asil.org/ajil/kosovo.htm >.
19. Problems would arise for humanitarian military intervention by national, as opposed to UN, forces. This is a difficult problem, as arguably only national actors have the will to intervene early enough to make a difference. I think it sufficient here to say that the benefits of expanded permission to engage in such missions have to be offset by the costs that that permission will underwrite clearly unwarranted interventions. 36. This assumes that they do not care independently about civilian casualties, as indeed they may not if fighting on enemy territory. 37. I am indebted to Jeremy Waldron for discussion of this point. 38. I would guess that real challenges for discrimination come in two settings. The first is urban combat, where discrimination is already difficult even between distinctively marked troops. Second is the long-distance aerial strike, where small arms might not be visible to a target spotter. But since combatants, uniformed or not, might well be camouflaged in buildings or vehicles that require no distinctive marking, the problem of discrimination does not seem to me appreciably greater with PI 44 than without. (This may underestimate the difficulties faced by U.S. troops facing guerilla warfare in Vietnam, though France, with similar guerrilla experience, ratified PI without reservation to Art. 44.) 39. Arguably, protection should also be extended to foreign volunteer groups aiding partisans in struggles for self-determination, or against extermination, so long as the national partisans themselves qualify for protection. (Foreign members of national groups, like Gray, are protected under the current PI criteria.) While there is a cost to this position-it increases instability by making foreign intervention more attractive-it has the corresponding benefit of increasing the likelihood of success in just struggles. The logic is thus parallel to the national group case, and ought to be governed by the same deeper principle, namely that these volunteer groups have come to joins their wills in the collective struggle as well. (I thank an Editor of Philosophy & Public Affairs for this suggestion.) 40. I explain and defend this claim extensively in Complicity: Ethics and Law for a Collective Age (New York: Cambridge University Press, 2000). 41. [1978] 1 W.L.R. 1350. 42. I develop this argument in "Collective Work of Citizenship."43. This is one of many reasons why "terrorism"cannot be the opponent of a war. If the protean abstraction of global terrorism is the opponent, then anywhere terrorists act is a scene of "battlefield"combat, governed only by the laws of war. This means states might target and kill virtually anyone suspected of terrorism, subject only to constraints of reasonable discrimination and proportionality. For discussion, see Rona, "Interesting Times."Questions about the proper legal analysis governing the conflict with terrorist groups such as Al Qaeda are very complicated, and beyond the scope of my argument, which concerns unproblematic deployments of the idea of armed conflict and battle. For discussion, see
20. John C. Yoo and James C. Ho, "The Status of Terrorists, "Virginia Journal of International Law 47 (2003): 207-28.
21. It is even more plausible on a deterrence theory, of course: A state has every legitimate interest in deterring attacks on its soldiers. 45. It is a clear implication of my view that non-combatant citizens are also in principle exposed to punishment for the belligerency. However, for the much-discussed consequentialist and slippery-slope reasons of trying to avoid total war, I regard the impermissiblity of attacking non-combatants as much easier to defend than the permissibility of intercombatant killing. 46. Bernard Williams, "Moral Luck,"in Moral Luck (New York: Cambridge University Press, 1981), pp. 20-39. 47. For a rich discussion of post-war justice, see
22. Gary J. Bass, "Jus Post Bellum, "Philosophy & Public Affairs 32 (2004): 384-412.