LLRX Book Review by Heather A. Phillips – Just and Unjust Warriors: the moral and legal status of soldiers

David Rodin & Henry Shue, eds. Just and Unjust Warriors: the moral and legal status of soldiers, (Oxford University Press, 2008). ISBN: 9780199233120

Anyone who has been watching the news lately has seen the resurgence of the torture debate and knows of President Obama’s stated intention to refrain from prosecuting those who participated in so-called “enhanced interrogation techniques” in reliance on legal memos that argued that such tactics were legal. And while the phrase “just following orders” has grown infamous in the decades since it was used in the Nuremberg Trials, I discovered in reading Just and Unjust Warriors: the moral and legal status of soldiers that the debate is far more nuanced than the specters conjured up by that phrase.

Traditionally, there has been a distinction drawn in the law of war between jus ad bellum and jus in bello; that is, between the justness of the war itself – the reasons for going to war – and the justness of the methods used during the war to pursue those goals. Under a traditional understanding of jus in bello, all combatants, regardless of faction, have the same rights and operate under the same rules as all other combatants, regardless of the jus ad bellum under which their side operates.

This concept of moral symmetry has grown out of Michael Walzer’s classic treatment in which soldiers are presumed to have no choice as to their status, and to have little capacity, due to the pervasiveness of propaganda and misinformation, to make choices as to their participation. Soldiers are, as Jeff McMahon writes in his essay appearing in this book, more like gladiators than actual participants. In a very real sense then, they are also victims of war who, due to their position, are motivated less by aggression and more by patriotism (perhaps misplaced, but still genuine), or merely the desire to survive. They cannot then, be faulted for targeting other combatants who are, after all, also targeting them in turn. On the other hand, soldiers may not target non-combatants because they pose no danger.

This classical formulation make a certain amount of sense and has a clear functionality. For instance, soldiers cannot be prosecuted for bad decisions made as to the motivations and goals (jus ad bellum) of the war in which they have fought, given their lack of control over such matters, but can be prosecuted for whatever wrongs they commit while pursuing the goals of that war (jus in bello) – such as the targeting of civilians or other noncombatants – because (among other reasons) such acts are not taken in self-defense.

The classical formulation (about which Michael Walzer’s classic text Just and Unjust Wars provides a remarkably intelligent and lucid introduction), is not without its problems. For example, if a war is sufficiently unjust (in the sense of jus as bellum), does it not logically follow that all actions taken to further its goals (the jus in bello) are therefore unjust? However, if this is true, does it then stand to reason that every soldier should be held to the same account as the architects of an unjust war? And what of the truism that victors write the history books? In the absence of any truly objective standard, would such logic not simply result in greater retribution taken against the losing faction?

Just and Unjust Warriors examines such nuances though a series of eleven well-written and closely reasoned original essays that question the treatments of many of the foundations of classical just war theory, such as a non-volunteer army, the use of private contractors as soldiers, the harmlessness of those not actively engaged in combat, the symmetry of combatants, proportionality and extreme emergency. The authors focus on these problems through a variety of lenses, and make differing – sometimes conflicting – suggestions as to their remedy. Might a contractarian model be employed to better examine certain aspects of just war theory? What happens when one side refuses to recognize the wartime (jus in bello) rights of the other side – does that in turn free its enemy from the responsibility to recognize its rights? Should it? How do issues of asymmetrical warfare – such as patriotic revolt or terrorism play out? Ought we to conceptually separate the law of war from the morality of war? What relationship ought they to bear to each other? What might happen if the law of war becomes overly complex? Is the current system, reductive as it may be, preferable to more nuanced systems precisely because of its simplicity?

While it does contain analysis of current laws of war, much of the content in this book is philosophical in nature – contemplating the flaws in the current system and proposing potential solutions to those flaws. That being said, any library that collects in the area of international relations, diplomacy, international law or the law of warfare (either philosophical or applied) will find this book of interest. Any library that houses a purely procedural collection, however, may find this book slightly out of the focus of their collection.