Michael Walzer holds the view that combatants have an equal right to fight, whether or not their state is pursuing a just cause.[1] This is one part of a larger view called the moral equality of combatants, which extends beyond the scope of rights to fight or kill to equal moral status as such. In other words, the moral equality of combatants (MEC) holds that “combatants on all sides must have the same moral status, hence the same moral rights, immunities, and liabilities.”[2]
Walzer’s Moral Equality of Combatants
Why is this of any import? Because there are two sides in war, a just side and an unjust side. Typically, the aggressor of a war is the unjust side, and the just side engages in combat for self-defense or perhaps some other humanitarian reason. But this sense of just and unjust sides of war pertain to reasons for war, or jus ad bellum conditions. There are other conditions, jus in bello conditions, that pertain to the means by which a war is fought.[3] Presumably, combatants on either side of war should not be judged according to jus ad bellum conditions, for combatants have little power in decisions about one’s military going to war. That is, it is military leaders, and not combatants, that are responsible for initiating a war.[4] Instead, they ought to be judged according to their conduct in war, that is, according to jus in bello conditions.[5]
At this level, however, what distinctions are there between unjust and just combatants? With the exception of fighting for either a just or unjust side of a war, combatants on both sides appear to be behaving in the same way. That is, combatants follow the commands of their authority to fight and protect their comrades from continuous threats of an enemy attack. Barring cases in which a combatant commits war crimes, each set of combatants is threatened by the other. As mentioned earlier, Walzer ultimately thinks that this entails an equal right to fight. If all combatants share this equal right, however, it seems that just and unjust combatants are morally on a par. Thus, we have a basic account of the moral equality of combatants. The attraction to MEC, then, just is that all combatants have an equal right to life, a natural right held by all persons, but also an equal right to fight, given the nature of war. There does not appear to be any obvious way in which just and unjust combatants are morally distinct. For this reason, each respective side of war is permitted to fight in self-defense against the threats of the enemy side.
McMahan’s Objection From Liability
The most prolific critic of MEC, Jeff McMahan, holds that there are moral differences between just and unjust combatants. The morally relevant difference is derived from McMahan’s account of liability. The idea here is that one is made liable to attack in war if one is morally responsible “for an objectively unjustified or wrongful threat.”[6] On one interpretation, “a wrongful threat is a threat of wrongful harm – that is, harm to which the victim is not liable – posed by action that is objectively wrong.”[7] Under this interpretation, unjust combatants pose wrongful threats when attacking just combatants, since their reason for war is objectively unjustified according to jus ad bellum conditions. But just combatants are not liable since their threats are objectively justified. Thus, just and unjust combatants do not share an equal moral status, for unjust combatants are liable to attack while just combatants are not.
On a different interpretation, a ‘wrongful threat’ is a threat of wrongful harm regardless of the action that poses that threat. Here, just combatants can be made liable if their attacks threaten any non-combatants, such as innocent civilians within a blast radius of an enemy military base. While this may occur occasionally within war, McMahan thinks that such threats are negligible. That is, drivers pose negligible threats of wrongful harm to innocent bystanders despite not being liable to defensive harm. Similarly, just combatants do not aim to harm non-combatants, but threats of war will at times threaten non-combatants as mere side effects. So, on one hand, just as drivers are not liable to defensive harm because of negligible threats, so just combatants are also not liable. On the other hand, “the threat, either to just combatants or to others, posed by a particular unjust combatant at any time during war is generally quite serious.”[8]Therefore, according to this interpretation, just combatants are not liable to defensive harm during war, while unjust combatants are liable.
Thus, McMahan’s account of liability attempts to show that there is at least one morally important difference between just and unjust combatants. That is, just combatants are not liable to be attacked (unless they violate jus in bello rules), and consequently unjust combatants never gain the self-defensive right to kill just combatants. Since just combatants do maintain this right to self-defense, they do no wrong when killing unjust combatants in a defensive war. Since MEC allows unjust combatants to attack non-liable agents, just combatants that maintain their right to life, we should reject MEC.
Renzo’s Middle-ground Response to McMahan
It appears then, that the difference between Walzer and McMahan’s view is how jus ad bellum conditions affect combatants’ permissibility to fight in war. As we have seen in McMahan’s critique of Walzer, unjust combatants’ liability to attack, that is, being a legitimate target of attack, is due to the fact that unjust combatants are fighting on objectively unjustified grounds. Critics of McMahan, however, disagree that unjust combatants do not have justification for fighting in war. Massimo Renzo argues that combatants have a pro-tanto obligation to obey orders.[9]
Just as it is generally accepted that legitimate political authorities can place us under pro-tanto obligations to obey that authority, Renzo holds that this general principle carries over into the obligations of combatants. That is, combatants gain a presumptive duty to obey the order to fight in a war.[10] So, this pro-tanto obligation to obey is what justifies and permits unjust combatants to fight in war. But Renzo also deploys some constraints on such obligations; for even unjust combatants have a duty to determine whether or not their state is requiring them to act unjustly.[11] Therefore, what Renzo coins as his “Presumptive Reasons Model,” can be understood as the following: We have presumptive reasons for action that grant us a pro-tanto obligation to obey orders unless (i) those orders are not given by a legitimate state, or (ii) we have good reason, or enough evidence, to think that we are being ordered to act unjustly.[12]
So, according to Renzo, so long as unjust combatants satisfy these conditions, they are justified in fighting in war. The important difference, then, between just and unjust combatants (that satisfy Renzo’s conditions) will preliminarily be that unjust combatants happen to be working towards an unjust cause, whereas just combatants are not. Thus, contra Walzer, jus ad bellum conditions at least sometimes affect combatants’ permissibility to fight –either (i) or (ii) of the presumptive reasons model. Contra McMahan, jus ad bellum conditions do not always forbid unjust combatants to fight.
Zohar’s Collectivist Approach
While McMahan offers an individualist approach to the moral status of combatants, Noam Zohar takes a more collectivist approach. For Zohar, war is not merely a confrontation between individuals, but primarily a confrontation between nations.[13] Why this move from the individualistic to collectivist approach? Because “from the individual perspective, even the enemy soldiers ought not to be killed.”[14] In other words, from an individual perspective, unjust combatants are mostly innocent. So, instead of viewing war as mere sets of just and unjust combatants fighting, we can view war as being fought between a collective defender and a collective aggressor respectively. Thus, the morality of war “must be weighed on the great collective scale.”[15]
The idea here is that it is not necessary under Zohar’s account to determine each combatant’s guilt or innocence. It is presumed that doing so would be impossible.[16] But defending against a collective aggressor can permit killing combatants, “for in fact we cannot act against the enemy as a collective without killing particular persons.”[17] In this sense, combatants can sometimes be viewed as mere instruments used to pursue a collective cause. But this is no protection for unjust combatants. Zohar holds that unjust combatants, as part of the collective aggressor, are liable to attack in virtue of the collective aggressor’s aims. So, just as with individual self-defense, just combatants are not liable to attack, for they are part of the collective defender and collectives under attack do not become liable in their defense efforts.
Hurka’s Mutual Liability Account
While both Walzer and Zohar begin with collectivist approaches, others still think that MEC can be derived from individualist approaches. On one such account, belonging to Thomas Hurka, both just and unjust combatants are liable to attack. But this is not because of any countervailing reason outside of each combatants control. That is, “by voluntarily entering military service, soldiers on both sides freely took on the status of soldiers and thereby freely accepted that they may permissibly be killed in the course of war.”[18] Such acceptance not only entails the permissibility of being killed during the course of war, but specifically being killed by enemy combatants. This just is the issue at hand, how can unjust combatants be liable to attack, but do something wrong when they attack just combatants? Hurka’s view simply holds that both just and unjust combatants voluntarily make themselves liable to attack.
Hurka’s view entails a version of MEC with respect to the relevant features discussed by critics, that is, permissions to fight and liability to be attacked. Hurka admits that there may be differing degrees of proportionality in attacks. But, as it pertains to the aforementioned relevant features for just and unjust combatants alike, “insofar as they target each other, both act permissibly and neither’s acts are wrong.”[19] So, while McMahan and Zohar have derived the liability of unjust combatants in different ways, Hurka’s individualist account of combatant consent seems to entail that just combatants are also liable to attack during war, as are unjust combatants, by voluntary joining their respective militaries.
References
Benbaji, Y. 2008. “A Defense of the Traditional War Convention,” Ethics, 118(1): 464-495.
Hurka, T. 2007. “Liability and Just Cause,” Ethics & International Affairs, 21(1): 199-218.
Lazar, S. 2010. “The Responsibility Dilemma for Killing in War: A Review Essay,” Philosophy & Public Affairs 38(2), 180-213.
McMahan, J. 2009. Killing in War, Oxford University Press.
Renzo, M. 2019. “Political Authority and Unjust Wars,” Philosophy and Phenomenological Research, 99(2), 336-57.
Walzer, M. 1977. Just and Unjust Wars, New York: Basic Books.
Zohar, N. 1993. “Collective War and Individualistic Ethics: Against the Conscription of ‘Self-Defense,’” Political Theory, 21(4): 606-622.
[1] See Walzer (1977: 34-44) Just and Unjust Wars
[2] This conception of MEC found in McMahan (2009: 4) Killing in War is how McMahan represents Walzer’s view. See Walzer (1977: 34-47).
[3] Walzer (1977: 21)
[4] Ibid., 37-38. Also see Benbaji (2008) “A Defense of the Traditional War Convention”
[5] Walzer (1977: 38-39)
[6] McMahan (2009: 38)
[7] Ibid.
[8] Ibid., 40
[9] Renzo (2019) “Political Authority and Unjust Wars”
[10] Ibid., 343-353
[11] Ibid., 346-349.
[12] Ibid., 348-349.
[13] Zohar (1993: 616) “Collective War and Individualistic Ethics: Against the Conscription of ‘Self-Defense’”
[14] Ibid., 619
[15] Ibid., 615
[16] Ibid., 615-616
[17] Ibid., 616
[18] Hurka (2007: 210) “Liability and Just Cause”
[19] Ibid., 216
Dallas Havens 