The Rules of War

In his Oslo speech delivered after receiving the Nobel Peace Prize, the US President Barak Obama emphasized the need for warring nations–especially the United States of America–to follow the rules of war. These rules, sometimes collectively referred to as jus in bello, deal with the limits of morally acceptable conduct between belligerent parties during periods of armed hostility.  In the contemporary context, nations are bound by specific rules governing the humanitarian treatment of war victims; these rules are found in the four Geneva Conventions (1864; 1906:1929; 1949) and the three additional protocols (1977; 1977; 2005), as well as the two Hague Conventions (1899; 1907) and other internationally recognized documents.  President Obama was referring to these very rules in his Oslo speech.  In emphasizing this point, however, the President also managed to make three additional claims that deserve closer scrutiny.  Here is what he said:

Where force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct.  And even as we confront a vicious adversary that abides by no rules, I believe the United States of America must remain a standard bearer in the conduct of war.  That is what makes us different from those whom we fight.  That is a source of our strength.

At this point in the speech, Obama had already established to his own satisfaction that the use of violent force is sometimes acceptable, even morally imperative.  Leaving aside that discussion for another day, let us focus here on the question of the rules that govern wartime conduct.

Obama acknowledges that there are, indeed, “certain rules of conduct” that govern the behavior of warring nations; he then goes on to contend that the United States has “a moral and strategic interest in binding ourselves” to those rules.  This wording says a great deal about Obama’s ethical reasoning . . . perhaps more than he wants to reveal.  Notice the word “interest.”  Obama is saying that the United States should follow the rules of war because it is in our “interest” to do so.  This may have been an appropriate argument in front of the US Congress, but it was out of place at the Nobel Peace Prize ceremony.  Given the international nature of that forum, Obama’s assertion of “our interest” appears both rude and imperialistic.  But perhaps that was exactly what he wanted to convey, and he did so in a manner that was considerably more pleasant, sophisticated, and palatable to his audience in Oslo than the clumsy threats characteristic of the previous occupant of the White House.

In addition to the word “interest,” Obama’s use of the phrase “binding ourselves” is also significant.  It implies that any constraint on our (i.e., United States’) wartime behavior can only be the result of our own voluntary decision, rather than the result of international pressure, criticism, or judgment.  Read this statement in the context of the US refusal to join the International Criminal Court.  We are, effectively, our own judge . . . and we shall always find ourselves “not guilty.”

Obama’s message to the international community was sweet and clear: Don’t think that we are agreeing to follow the rules of war because we owe you anything, or that you have any influence on our policies and decisions, or that we are recognizing any standard on which you can hold us accountable that is higher than our own self-defined “interest.”

There is, of course, a place for “interest” in any ethical reasoning, but it would be a highly volatile, not to mention dangerous, foundation for the moral commitments of world’s most powerful nation.  After all, anything can be justified in the name of “our interest.”  What happens to the Geneva or the Hague Conventions when someone determines that it is no longer in our “interest” to follow them?  The answer seems obvious.  These conventions would meet the same fate as that of the countless treaties that the White settlers had signed with Native Americans.  As a nation with a Manifest Destiny, we lost interest in those pieces of paper.

Obama’s use of the word “interest” is deliberate.  To be fair, it would be wrong to target the President as if he were a monster, an aberration in a nation of saints.  The mindset behind the sacred idea of “our interest” represents the general sense of entitlement that many Americans hold as one of the basic tenets of our civil religion.  Obviously, all nations are expected to keep their own “interest” at the forefront of decision-making; what makes the United States stands out in the international community is that we, literally, stand far above the laws that lesser countries must abide by.  We can hold them responsible for not following the rules and even punish them at will, but they are in no position to hold us accountable in the same way.  Even the vast majority of the nations of the world, acting together, cannot make us agree to what they belive is the right thing to do, so long as we determine that it is not in “our interest.”  The history of our use of the veto in the United Nations Security Council is a case in point.  We are supremely able to defend “our interest” in a manner that no one else can, which is a good definition of a “superpower.”

The trouble with this state of affairs is that we routinely defend and promote “our interest” in ways that destroy the chances of other nations to do the same with their “interests.”  More recently, we have been safeguarding “our interests” even at the expense of the planet.  We would rather hold on to “our interests” than ensure that the earth survives as a habitable place for humans and other living beings.  It’s like we are standing with loaded guns in our hands and preventing anyone from trespassing our luxury suite . . . when that luxury suite happens to be located on a sinking Titanic.

It is strange that Obama linked the idea of “interest” with the adjective “moral.”  What, exactly, is the “moral interest” of a nation?  Who is the moral voice of a nation?  More importantly, what makes the state the sole interpreter and custodian of a nation’s “moral interest”?  The idea of our “strategic interest,” on the other hand, makes somewhat better sense, being an abstraction that usually goes by the name “national interest” and seems to be almost worshipped as the highest form of good.  We are willing to sacrifice any moral standard, any ethical value, any commitment, any promise, and any treaty if we decide that holding on to it would hurt our “national interest.”  On the other hand, virtually any policy measure, however unpopular inside or outside the country, can be adopted if we decide that it will promote our “national interest.”  We are still refusing to sign or ratify such international agreements as the Convention on the Rights of the Child, the International Criminal Court, the Convention against Enforced Disappearance, the Mines Ban Treaty, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on Cluster Munitions, the Convention on the Rights of Persons with Disabilities, the Comprehensive Nuclear Test Ban Treaty . . .  for one reason or another, all these seem to threaten our “national interest.”  Compared to these, however, our behavior at the recent UN Climate Change conference in Copenhagen broke all records of imperial hubris.  Apparently, we follow the rules on two conditions: first, we should be making the rules, and, second, the rules must serve “our interest.”  Too bad Obama did not say this in Oslo . . . but then again he didn’t need to.

Moving on to Obama’s second claim, that “we confront a vicious adversary that abides by no rules.”  By the phrase “vicious adversary” the President is presumably referring to the so-called “terrorists” against whom the United States has been waging war at least since 9/11.  There are, obviously, individuals and groups that are determined to harm American lives, and perhaps it is even fair to call them “vicious.”  It is also obvious that such individuals and groups must be prevented from carrying out their murderous intentions.  The problem, however, is located in Obama’s claim that this “vicious adversary” does not abide by any rules.  In fact, Obama argues that this is precisely what makes us different from our enemies.  What distinguishes us from them is simply that we abide by the rules of war and they do not.

What, exactly, are these “rules” that we obey but they do not?  Obama did not elaborate on this subject, but one would guess from the rest of his speech that he was referring to the internationally accepted rules of wartime conduct as found in the major agreements and treaties, such as the Geneva Conventions.  The “terrorists” that Obama is talking about, however, are entities that function either below or above the level of nation-states.  These entities have never signed the Geneva Conventions nor have they requested to join the United Nations as sovereign states.  On what grounds do we expect them to abide by our rules?

There is, on the other hand, a sense in which the “terrorists” do, in fact, abide by the same rules as we do.  At the core of the International Humanitarian Law is the requirement to distinguish between civilians and combatants, and to refrain from attacking or harming civilians.  Conventional wisdom says that violation of this core principle is what constitutes “terrorism.”  The problem, of course, is that even the most powerful and sophisticated militaries in the world have serious difficulty following this principle.

The last sentence was an understatement.

In referring to the “rules,” Obama may have in mind some fundamental difference between how terrorists operate and how the military of a modern nation-state operates.  As I tried to show in a previous series of postings (Religion and Organized Violence), no such difference actually exists.  There are some trivial contrasts, of course, such as the soldier wears a uniform while the terrorist wears civilian clothing, or that a soldier drops or throws a bomb while a terrorist plants a bomb.  On the other hand, we can identify a number of crucial points on which these two sides are very much in agreement.  The terrorist and the soldier are identical in their adherence to the following — usually unacknowledged — assumptions:

  • The only power worth having is the power to destroy.
  • The side that kills more people is usually the side that wins.
  • An essential discontinuity exists between us and them.
  • We are morally superior, which makes them unworthy of life.
  • Sometimes you must sacrifice your own life for the sake of your people.
  • The more scared they are, the better they will listen to reason.
  • There is no such thing as too much violence.
  • The only language they understand is the language of force.
  • An abstraction can be more real than flesh-and-blood human beings.
  • There are no innocent people on the other side.
  • If my cause is just, I can do nothing wrong in serving it.
  • Destruction is sometimes necessary for renewing the world.
  • Killing can be the highest expression of altruistic love for one’s people.
  • My duty is to listen and obey, and I do not question my superiors.

The only significant difference that I can think of at this moment is the difference in scale.  The soldiers of a nation-state are capable of causing harm and destruction on a colossal scale, one that the “terrorists” can only watch with awe and envy but can never hope to achieve themselves.  Indeed, if “terrorism” is defined as the deliberate cultivation of overwhelming fear in a given population in order to obtain its obedience, then the nation-state must be acknowledged as one of the topmost perpetrators.  Restricting the word “terrorist” to non-state entities obfuscates the fact that the overwhelmingly majority of terrorizing acts are traceable to the modern state.  Edward S. Herman uses an alternative vocabulary to expose what he calls “the absurdity of this definitional system.”  He argues that terrorism comes in two forms, “retail” and “wholesale.”  According to Herman, “Dissident individuals and groups kill on a retail basis (that is, on a small scale, with limited technological resources to kill and with small numbers of victims); states kill wholesale.”

Finally, let’s consider Obama’s third claim.  He argues that our commitment to follow the rules makes us strong vis-a-vis those who refuse to do so.  We abide by the rules, the President asserts, and this fact is a “source of our strength,” and, he seems to imply, a source of weakness for the adversary.  Given that our abiding by the rules does not give us any overt military advantage, one would think that the President is referring not to material strength but to moral and/or spiritual strength.  He is telling us that we are not only different from our enemies, but also, and more to the point, we are better.  We are, in other words, morally and spiritually superior to the “terrorists” because we are committed to following the rules whereas they have no such commitment.  It’s not only that our cause is just; we ourselves are just too.  By contrast, their cause (if they have any) is clearly unjust, and since they obviously don’t follow the rules, this makes them unjust as well . . .  in effect, “vicious.”

This claim is supposed to make us feel better; it is meant to show an improvement over the previous President’s policies, who is said to have broken many rules.  And yet, the dichotomous good vs. evil scenario of George W. Bush is alive and well in the much more educated vocabulary of the new President.  We are fighting evil, which makes us good by definition.  They are vicious, which makes us gentle by contrast.  We abide by the rules, which clearly makes them the worst kind of rule-breakers.  We are everything they are not.  It’s Cowboys and Indians all over again.

Strangely enough, the words that we use to condemn them are the same words that they use to condemn us.  However, if the above list of basic assumptions shared by the terrorist and the soldier is any indication of the reality of violent conflict, then claims of moral superiority should be seen as the very fuel that helps keep the flames of violence going.  The belief that “we are better than them” is not a legitimate justification for the use of violence; it is, on the contrary, part of the causal chain that generates and maintains the violent conflict.

5 Comments on “The Rules of War

  1. Ahmed.

    Just a thought or two. If government was run by and for angels, there would be no need for laws. This could be an extended comment on Kant’s “Critique of Pure Reason”, where angels know intuitively what we have to work out through concepts and experience. In regards to this we might let O’s better angels speak and let “moral” shape our understanding of interest instead of interest shape our understanding of moral. In this regard you could construct a very strong argument that our MORAL-interest, respect for the law, the purity of the will, requires us to do what we refuse to do e.g recognize international agreements and forums. It would also lead us in the direction of limiting the type of war we could morally engage in. I need to look more closely at the later part of your argument, but in some sense, given a moral interest in just war theory, the only just war would be an extreme exception. This would have been a nobel speech.

    • Thanks for your comments, Rev. Elkins. I guess the phrase “moral interest” evoked a cynical response from me because moral arguments have a long-standing history of behaving like playdough in the hands of the powerful, and the greater the power of the person who appeals to morality the more it scares me. And I am positively terrified when a leader says that the “moral interest” of his nation somehow involves or requires or justifies the probability of large-scale killings in a far away place.

      I do agree that every nation has a “moral interest” that it must strive to uphold and promote, but I doubt if the state is even capable of morality in any self-conscious way. The state is merely an instrument, albeit a very powerful one; it is the responsibility of the nation as a whole — and particularly its theologians, philosophers, poets, and artists — to make the state act in a way that serves the nation’s real “moral interests.”

      For this reason, I do not believe that a matter as grave as war can be solely entrusted in the hands of a political leader, no matter how much we adore him.

      And yes, our “moral interest” and “strategic interest” are not necessarily the same; in fact, most of the time we have to sacrifice one in order to uphold and promote the other.

      In the case of escalation in Afghanistan, I believe that we are sacrificing both kinds of interests simply because we can’t think out of the box and don’t know what else to do. It’s a knee-jerk reaction to a complex problem, not leadership.

  2. Ahmed.

    Having lived through Viet Nam, Watergate, Iran Contra and now our Destert Storms, Freedoms etc etc. I am quite familiar with how Morality inclines and then radically falls into self interest. The point, if I could clarify it, is that those who use moral language should be held to what it means. If ought implies can, it also motivates changes in action. Politicians who use language like “moral interest” might be attempting a persuasive definition (a real Christian, Muslim believes (fill in some ideology)….or ought really means what’s in our best interests) but then again they might be persuaded that their argument commits them to higher standards of meaning and value, standards that by implication commit them to resist their own self interest for something more categorial in form e.g. act so that your actions serve the kingdom (realm) of ends. Of course, Kant was familiar to many students that joined the German armies and SS, but somewhere in this complex process of self inflation it became necessary to obscure logic and imprison the logicians. Our job is to hold thought to its highest standards and then show how a different world could be imagined if everyone thought “logically” outside the box. Your writing is an example judging the real by the ideal, but don’t loose mystery in the mess we make of things.

    Prof Bill

  3. Just a thought: we all can be right about how false something appears and, at the same time loose sight of what leads us to feel this way..without renewal of some idea of the “divine call” we will loose it devilish details. For example, reading de Tocqueville I was struck by his balanced evaluation of the development of Democracy in American and the Christian world”…from his introduction to Democracy in America: As a result, the democratic revolution has taken place in the material of society without making the change in laws, ideas, and mores that would have bee necessary to make this revolution useful. Thus we have democracy without anything to attenuate its vices and make its natural advantages emerge; and while we already see the evils it brings, we are still ignorant of the goods it can bestow.

    We believe, help our unbelief!!

    Prof Bill

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