A Just Value of Life: In the Context of War

Benjamin Philip George

V00767906

Thursday, December 12, 2013

Philosophy 235
Klaus Jahn
University of Victoria
Department of Philosophy

In Just and Unjust Wars: A Moral Argument with Historical Illustration,

Walzer (2006) criticizes the components of war which he see unjust. His critique, as
pointed out by the title, is largely based around the idea morality and moral
recognition of rights and people. Walzer refrains from arguing against the legality of
the war convention, but nevertheless, condemns the first and second principle unjust
by morality. The focus of this paper will be to identify, analyze, and explain the
second principle of the war convention and Walzers account on it. The second
principle of the war convention as it stands states that non-combatants cannot be
attacked at any time. In theory, the principle greatly restricts the use of lethal force
against any individual who is not engaged in a combatant role; yet still, there are
many causalities of war. Therefore, Walzer demonstrates through analogous examples
an understanding of non-combatant characteristics. I accept Walzer notion that the
proposed objections to the war convention are a product of different perspectives,
moreso related to the first convention than in comparison to the second convention. I
argue this because the second convention dictates whom soldier can kill by limiting
the classes that are liable to be killed. This principle is argued by the two-sort rule,
which dictates firstly whom and how a soldier can kill, and also whom they can kill;
thus, distinguishing the victims of war prone to attack and those who are principally
untouchable. Similar to the first principle, in which Walzer also argued to be unjust,
the second principle draws upon issues that concern its legality. In its essence, the
principle seeks to preserve and protect civilians right to life and liberty by setting
certain classes outside the permitted range of warfare such as civilians, naked soldier,
etc. Therefore, the act of killing one of these innocent individuals can be deemed a
criminal act. By analyzing both arguments, I will demonstrate that Walzers proposed
arguments against the second principle is that the combatants of war are doing less

than is legally required of them by their duty to the state and obligation to the people
they protect, and thereby making the principle both morally unjust and legally
shambolic.
Although the issues concerning the second principle are clearly and legally
defined, it has left room for many potential loopholes to be loosely applied as a
genuine justification against the principle. Concepts such as military necessity and
casualties of war negate the fundamental basis of the second principle, the killing of
innocent; but nonetheless, these principles can denote just reasoning. Therefore, as a
method of organizational structure, I will identify and characterize the four types of
civilians by evaluating the historical process in which they base their rights on. These
four civilians are, as described in the book, the unconditioned civilians, the
conscripted/hired civilians, the casualties of war, and the naked man. I will
demonstrate that all these four types of non-combatant derive different rights that
stem out of the right to life and liberty obtained as a political community. In doing so,
I will determine the rights obtained under the second principle and compare it to the
practice of those rights in warfare.
The fundamentals of the second principles are that non-combatants are not
subject to attack at any time. Therefore, they are distinguished as illegitimate targets
of war, those not engaged in threatening or harmful activities, making them immune
from harm. However, as Walzer demonstrate, even though the rule clearly states noncombatant immunity, it is subject to interpretation and has evolved historically. I will
begin my distinction with the first class, the most clear cut example, the
unconditioned civilian or basic idea of a non-combatant. This group included those
individuals whose actions do not directly contribute to the efforts of war, but rather,
only play a symbolic role, a role that would have to be fulfill regardless the time

period in which it stands, war or peace. These individuals usually contribute to the
basic necessity of life such as production of food, water, clothing, etc., but in no way
directly benefit from or provide benefits to any military actions, usually suffer as a
consequence of war. Therefore, the fundamental difference between a combatant and
a non-combatant is the concept of innocence from participating in any military
activity. This innocence provides this class of individuals the untethered right to life
and liberty. I will define and describe the rights of a civilian as a casualty of war later
on in my discussion. Nonetheless, anyone who inflicts harm upon non-combatants
without justification is committing criminal acts, namely murder, rape, etc.; acts in
which the second principle sought to eliminate.
Walzer argues the principle of discrimination and non-combatant immunity is
set up to protect those who are untrained and cannot protect themselves. These
individuals are seen as a different class compared to combatants, and in so, has
different rights. For combatants, their rights have been established and given to them
by the state and the international political community that dictate the convention of
war. However, in contrast, a civilian obtains their right through the state or the
political community that protects them, but in turn, are also the source of their own
right. Therefore, similar to the concept of moral equality in the battlefield, I argue that
citizens share an inherent human right guaranteed by the state they abide to, and is
universal to all civilians or non-combatants. The idea of equality is based on the
fundamental rights individuals obtain through the state, making every citizens life,
regardless their emotional or political ties, equivalent to the life of a civilian outside
their boundaries. Walzer describes the second principles a binding method of setting
certain classes outside the permissible range of warfare, but also provides
allowances for activities excusable within reason (P.42). Therefore, within the context

of the first category, the killing of innocence civilians without proper reason is a
justification for a criminal offence. Therefore, killing or harming an innocent person
cannot be justified on account of it being a hierarchal order because it comprises the
fundamental rights of a human being. Using the example of the Moroccan
mercenaries in Italy in 1943, I will demonstrate that no order or rights obtained as a
soldier should overpower the rights of civilians. The example describes the rights
obtained by the mercenaries, which permitted them the license to rape and plunder
enemy territory. The argument dates back to Vitorian times based on military
necessity, which established the right to sack the states they are defeated as it was
necessary as a spur to the courage of the troops. Conversely, Walzer argues that
regardless the justification, rape is a timeless crime as it inflicts harm and injury on
the victim of rape thereby curbing their right to life and liberty. His argument
nonetheless is rooted in our moral recognition of the status of women. The patriarchal
notion of women as a prize of war shapes their judgment of the perceived rights of
women. He concludes by arguing that this method used resulted in illegitimate
military activity because it imposed upon the rights of the people against whom it is
directed. At no point in wartime conduct is there an acceptable time for a combatant
to directly, and/or deliberately target a non-combatant as a means to gain grounds or
victory. I accept Walzer arguments and use it as my position, the rights of individuals
is obtained as a political community, and should be adhered with respect as one would
respect the rights of their own political community. In saying so, I also accept
Walzers that no one should be forced to risk his life or be fight and that no one can
be threatened with war or warred against, unless on his own account (P. 135). A
bystander of war does not relinquish their rights on account of the state going to war.
War is as much a military activity as it is an economic activity. The second class of

citizens I will concentration on is discussed as civilian internees or non-combatants

with military ties. These are civilian sea-merchants who are partially engaged in
wartime activities by the nature of their employment or their efforts of participation in
military activity. Therefore, these civilians are benefiting from war and/or are directly
involved in the production of wartime materials or are indirect non-combatant
participants of the war. Although these individuals are inherently civilians, through
historical processes, they can also possess the status of a combatant. However, this
combatant status is situational and only applies when they are participating in
legitimate military activities or and engaged in the production of military goods and
service. The interesting arguments surrounding the second category of civilians are
their ability to be assimilated into a combatants status. This complex class thus
brings about room for a variety of debates, which I will argue by using the Laconia
Affair as a historical context with a viable example.
Before I provide the respective arguments surround the principle, I will
introduce the two doctrines that play a part in our understanding of the nature of the
following categories of civilians. The notion of military necessity argues it is
necessary to compel the submission of the enemy with the least possible expenditure
of time, money, and life. The principle therefore gives allowances to combatants if
they can argue their actions contributed to their war efforts, or the future probability
of victory. This stems from the idea of kriegraison, meaning the reasons of war. The
arguments states that what is important are not how the war is fought, but the reason
behind the origins of the war that justifies certain conducts. Under military necessity,
if the act is a legitimate act of war, combatants are essentially permitted to carry out
any method necessary to achieve victory. Nonetheless, the principle opened up room
for debate in the theory of war convention because it allows combatants to attack

civilian internees, or civilians whose job entails a form of military actions munitions
workers. A munitions worker is described as civilians who directly participate in
military action by the nature of the conducts of their jobs. Therefore, during work
periods, these munitions workers are involuntarily or voluntarily adopting the status
of a soldier; but they are only subject to attack during the hours of work and in their
place of work, particularly only when they are engaged in legitimate military actions.
The justification of assimilating combatant rights onto non-combatants is derived
from the reasons of their actions. These munitions workers, or civilian internees, are
acting on behalf of their military and are only subject to attack when their actions are
threatening and harmful to enemies. However, the principles must function as a action
of last resort, and only after exhausting all other alternate options, whilst, minimizing
risk. The second principle I would like to introduce is the doctrine of Double Effect.
Double effect permits acts that are likely to have evil consequences provided their fit
within the boundaries of the four conditions: the act must be a legitimate act of war,
the direct effects must be morally acceptable; the intentions of the actor is good
natured, and the good is sufficiently good to compensate for evil outcomes. In
accepting so, combatants are allowed to, knowingly or unknowingly, carry out
military actions that are likely to hurt or injure a non-combatant; this notion
introduces the principle of causalities of war. I have previously mentioned above, that
in war, it is a common forethought of combatants that their military activity may
result in harm on non-combatants. Therefore, the doctrines of Double Effect and
Military Necessary are important in this discourse because it carries the ability to
injure/harm civilians within reasonable as an excuse of war.
Prior to the 1920s, the navy was deemed as the ultimate battlefield because the
battled seas did not usually involved non-combatants, thereby, eliminating the options

of killing them. Conversely, as the number of merchant trade ships had increasingly
grown over time it progressively became a more practical method of transport, which
became an issue for sea combatants to distinguish targets. There are two issues at
hand here: firstly, the improvement of military technology that produced the
submarine forced a change in the rules of battle on sea. Secondly, the merchant ships
were caught in the middle of warlike activities; and as Walzer describes, were forced
into taking precautionary measures to counter such occurrences in the future. Similar
to the war on battlefield, sea warfare constitutes the same conducts. Therefore,
civilians lie outside the target reach out combatants, unless they fall within the
confines of military necessity or the double effect principle. This notion as I have
described above, and as defined by Walzer, is defined as non-combatant immunity.
Civilians are only made subject to an attack if they contribute towards the war. By
using the law of reciprocity, we assume that states are willing to abide by these rules
because they would expect the rules be observed reciprocally. However, although this
immunity seemed pertinent in limiting actions on the battlefield, Walzer points
towards the Laconia affair, which stipulates that civilians were no longer subject to
the London Naval Protocol of 1936, that forced submarines to abide by the same rules
as surface ships. Under the Laconia Order, Admiral Doenitz ordered that the sink on
sight policy be re-instated and that civilian casualties not be rescued; this order
directly opposed the agreement made in 1936. The Laconia Affair showed us that
civilians could also be killed or attacked if they are in proximity to another war, in
addition to being subject to attack because of their contribution to war. Ultimately, the
international justice court under the UN Human Rights did not condemn Doenitz of
war crimes because his rationales were justified by military necessity.

The war convention according to Walzer is unjust because it relies on the

moral recognition of soldier on the battlefield. It leaves the harshest decisions to be
decided by individuals on the ground making a judgment call. For example, in the
case of the Moroccan mercenaries, they failed to recognize the rights of women as
people and thus violated their basic human rights. We have established that a
legitimate act of war must not violate the rights of the people their attack is directed
to; that being said, just because a state goes to war against another state that does not
sanction an attack on its citizens. The failure of the war convention is that it only
recognizes the rights of civilians and specifies certain limits but does not establish it.
In addition, the notion of military necessity and double effect are inherently unjust
and should be revised. I will focus on his revision of these principles in relation to the
second and third class of civilians, which I categorize as civilian internees/munitions
worker and casualties of war. The Laconia Affair demonstrates two things: the
practical use of military necessity but also establishes the actions required of
combatants in the event of non-combatant casualties. The rights established by the
rules of war state that in the event of non-combatant casualties, in this case at sea, it is
the duty of the combatant from which the attack originated from to rescue the
civilians onboard the vessels. This right is founded upon the rights that civilians
obtain by committing to a political community bounded by its own political
sovereignty and backed by its territorial integrity that preserves and protects its
citizens life and liberties. Walzer argues this is unjust because the Laconia order
disregarded the basis of the London Naval Protocol and the rules of sea warfare. But
his argument is not embedded in this legality of the military actions because if it was
Doenitz orders were justified under military necessity. His argument analyzes the
issue of morality that is conflicted when military necessity is used as an ambiguity of

war. He identifies the nature of necessity of the actions of the order because of the
technological difficulties faced by a submarine, an underwater military vessel.
However, he argues that a general must not value the lives of his soldiers over the
lives of civilians because it is his humanitarian obligation to protect civilians of any
state as it is their human right, and in expectation of an equivalent action based on
nature of reciprocity. Therefore, it is not his moral recognition that should guide him
to rescue civilians he has inflicted harm upon, but rather it is his obligation to the
citizens he protects and duty to the state the fight to preserve. However, the issue
evolves as the role of the civilian was modified over time. After the Laconia Affair,
merchant ships were conscripted by the military to site enemy naval forces, in
addition, they themselves were armed vessels prepared to takedown German U-Boats
on sight. Under this context, the rules of war becomes more murky and the
restrictions that prohibit the infliction of harm on civilians laxed. Due to such events,
the German U-Boats were ordered to attack any known militant occupied noncombatant vessels on sight, even if they did not know they occupants on board. The
most significant restraint as it was can be summed down to two actions: the rules of
war ordered that military necessity be deemed a principle of last resort and instead of
attacking these ships they were suppose to try impede the actions of the civilian
participants in military conduct as best they could without significant risk to
themselves. This concept of significant risk does not and should not allow militants to
carry out any actions without regard for its consequence. The principle is there
because it lawfully requires the combatants involved to try help the helpless after the
battle in over.
The strength of the second principles relies on our moral recognition of
civilians rights, especially in context of war. It is subject to interpretation, which

differs by the nature of ones status. A good general must protect the lives of his
soldiers but more importantly the lives of the citizens of the state its wages war
against, but only doing so by abiding to the rules of war making his operation a
legitimate act of war. The rules of war have established who is not liable for attack
and when they become liable for attack. Nevertheless, in both conditions, it is their
fundamental right that their lives and liberties be recognized, preserved and protected
by all combatants. This same right to recognition and protection applied under
different laws also apply to combatants for combatants. Therefore, it is in the moral
recognition of the rights of civilians by soldiers that must guide their decision to risk
their lives to safe these lives. A general must not disregard the lives of innocent
civilians because he is afraid of risking the lives of his soldier or they could not save
themselves. The notion of military necessity is only excusable if it is the last option
available, within reasonable limits and if all other viable options are too risky. In
addition, Walzer argues that the doctrine of double effect has only one applicable rule,
the condition that incorporates both good intentions and evil consequences but
demonstrates a positive commitment to save civilians greater than described by
Sedgwicks proportionality rule. A soldier is required to do so because he is a trained
individual who has endangered the environment around him by the nature of his
occupation. By such nature, he is, and only he, is subject to attack at any time.
Therefore, he is ultimately obligated to place the live of civilians above his own
because he is bounded by duty to the state he fights for. A civilian should expect to be
saved by any combatant because it is their fundamental human right, and soldier
should accept the risks involved in protecting these rights because its is exactly those
rights which are being threatened by combatants.

Reference:
Walzer, M. (1977). Just and Unjust Wars, 4th Edition. Perseus Books Group. New York.
Chapters 3, 8, and 9.