Introduction
Ever since the dawn of civilization, groups of people united by a common interest used to wage wars on each other, as the ultimate mean of resolving seemingly irresolvable issues. Modern historians and anthropologists cannot even find a consensus on whether the first stone axes, produced by revolutionizing homo sapiens, were originally meant to be used as tools or weapons. Therefore, we can safely suggest that waging war represents one of the people’s most natural activities, simply because war, as a concept, does not contradict the laws of nature.
Quite contrary – it often facilitates these laws, although in rather a drastic manner. Therefore, we can only agree with Carl von Clausewitz’s definition of war as merely a continuation of politics. This is the reason why, within a context of violence vs. morality, violence will always end up having an upper hand – the known history of mankind substantiates the validity of this thesis better than anything else does.
War and morality
In his famous book “On War”, Carl von Clausewitz reveals the conceptual inconsistency of suggestions that considerations of morality, on the part of warring parties, must somehow affect their conduct: “If the wars of civilized people are less cruel and destructive than those of savages, the difference arises from the social condition both of states in themselves and their relations to each other… But these things (considerations of morality) do not belong to War itself; they are only given conditions; and to introduce into the philosophy of war itself a principle of moderation would be an absurdity” (Clausewitz, Book 1, Ch, 1).
In its turn, this Clausewitz’s idea provides us with insight into how the Doctrine of Double Effect (DDE) relates to the process of waging war. Stanford Encyclopedia of Philosophy defines DDE as the framework for moral reasoning, to which people resort while making decisions that might result in the deaths of other human beings: “The doctrine (or principle) of double effect is often invoked to explain the permissibility of an action that causes a serious harm, such as the death of a human being, as a side effect of promoting some good end” (SEP 2004).
The contextual essence of such formulation leaves no doubt as to metaphysical irrationality of DDE, simply because, whatever represents a “good end” for one individual, can be perceived as the “bad end” by another individual. Morality or immorality is nothing but a point of view, which is why, throughout history, the observation of Laws of War (Jus in Bello), has always been the last item on warring parties’ lists of concerns.
According to the Geneva Convention, which remains only the formally enforced international legislation, in regards to conduct of war, the participants of just about any military conflict are being grouped in two distinctive categories: the subjects of war (military personnel) and the objects of war (civilians). Under Geneva Convention, the members of military personnel that has been taken prisoners, while wearing their army’s uniforms, are entitled to a variety of rights, such as the right to fair treatment (while in captivity), and the right to be exempted from criminal persecution in the country where they would remain interned, until the end of hostilities.
In their book “Constraints on the Waging of War”, Frits Kalshoven and Liesbeth Zegveld point out at humanitarian essence of Geneva Convention provisions: “The most important feature of the Convention (ten articles long!) may be summarized as following the s: In war on land, ambulances and military hospitals would be recognized as neutral, and as such, protected and respected by the belligerents as long as they accommodate wounded and sick” (Kalshoven, Zegveld, 2009, p. 28). The same Convention also grants protection to civilians, on territories affected by war, on a condition that they would maintain their neutrality.
The acts of brutality
Nevertheless, as history shows, the casualties among civilians and the acts of brutality, committed by combatants during the time of war, have traditionally accompanied just about every military conflict. Moreover, this will continue to be the case in the future. And the reason for this is simple – during hostilities, Jus in Bello is only being observed for as long as it does not oppose the principle of “military necessity”.
In his book “Law on the Battlefield”, A.P.V. Rogers refers to military necessity as” Measures which are indispensable for securing the ends of war, and which are lawful according to the modern laws and usages of war” (Rogers, 1996, p. 4). In other words, even though formally speaking, the notion of military necessity is secondary to the notion of Jus in Bello, the fact that this concept can be freely interpreted to suit the needs of war’s participants undermines the legal soundness of Jus in Bello. Moreover, even though Jus in Bello specifically forbids killing civilians, it also contains a provision that it may be overruled by considerations of military necessity if circumstances require.
In his article “Jus in Bello and Military Necessity”, Colonel J.G. Fleury exposes the foremost reasons for the Jus in Bello to be traditionally associated with utter ineffectiveness: “Under the existing Law of Armed Conflict, the prohibition against harming non-combatants may be overridden by military necessity… The most problematic aspect is to try to determine when, if ever, non-combatants can be intentionally targeted (killed)”. (Fleury, 1998, p. 8).
Thus, the very concept of Jus in Bello is quite inconsistent with the notion of common sense, because expecting soldiers to always act gallantly towards the enemy, while under fire, is the same as entrusting convicted arsonists with being in charge of building’s fire safety. Therefore, the application of Doctrine of Double Effect, within the context of planning a military operation, can only make sense for as long as those who intend to utilize this concept to justify future deaths, among enemy’s military personnel and civilians, believe in the higher good of their cause. It is needless to say, of course, that one’s belief in the utter necessity of its cause does not make this cause more valid, especially when the deaths of people are concerned. As the famous saying goes – victors write history.
WW2 situation
If Hitler had won WW2, it is Churchill, Roosevelt, and Stalin who would be charged with “crimes against humanity”. On February 13, 1945, the German city of Dresden, filled with refugees from the East, was being deliberately incinerated by three waves of British and American bombers, with an estimated death toll among civilians amounting to 130.000.000. Nowadays, Western mainstream military historians strive to justify this barbarity by suggesting that it undermined Germany’s war effort, even though at the time of a bombing, there was not a single legitimate military target to be found in this German city, except a railroad, which despite all of the carnage inflicted on Dresden, remained untouched.
This incident serves as an indication that traditional Laws of War and Doctrine of Double Effect can hardly be applied to modern warfare, simply because the realities of the industrial era had brought about a situation when no clear distinction may be drawn between civilians and soldiers. According to Jus in Bello, a civilian is someone who fully withdraws from aiding his country’s war effort.
Can we suggest that some four-eyed scientist, who had never served in the army, but who nevertheless works on designing a new weapon, falls under the category of “civilian”? Therefore, we can only agree with Sheldon Cohen, who in his book “Arms and Judgment. Law, Morality, and the Conduct of War in the Twentieth Century”, suggests that the realities of modern warfare transform the conceptual premise of Jus in Bello into something entirely different from what it used to be original: “To target a tank factory whose workers are unarmed civilians is legitimate. The crucial distinction is not whether the person is military or civilian, defenseless or armed, but whether he is a source of danger” (Cohen, 1989, p. 26).
The validity of this suggestion had especially become apparent nowadays, when many military conflicts are best described in terms of community vs. community, instead of state vs, state. For example, for the duration of the last 10 years, the group Hamas, with the membership of less than a thousand men, has been keeping the area of the Middle East (and consequentially, the whole world) in the state of constant political tension. By day, the members of this organization go about their businesses, while acting as civilians. However, by night, they arm themselves with AK-47 (or strap explosives to their bodies), sneak into Israel proper, and try to kill as many Israelis as possible.
Does it mean that Israel has the right to bomb Palestinian towns, as it does? The answer to this question simply cannot be given with a high degree of certainty. In its turn, this points out to the fact that the concept of Jus in Bello had been largely deprived of its universal applicability, simply because nowadays, the very principle of waging war undergoes a rapid transformation, as we speak. For example, USS Ronald Reagan alone is capable of reducing just about any middle-size country into a Stone Age, within a matter of half an hour. However, as the aftermath of Hurricane Katrina had shown, it may only take few American large cities to experience a prolonged electrical black, to trigger the process of this country being engulfed by socials chaos – after all, diversity makes us stronger.
Whereas, it has taken America only four years to defeat both: Germany and Japan, during WW2, America’s war against very evil, but single individual Osama bin Laden, has now been lasting for eight years, with no victory in sight. This is the reason why it appears to be quite questionable whether the Western countries, which grow increasingly weaker from within, are in no position to utilize the Concept of Double Effect while dealing with what they perceive as geopolitical threats, simply because most of these countries’ politicians confuse the importance of “double effects” with the importance of protecting their nations’ well-being.
Britain’s “double effect”
For example, for Britain to safeguard itself from future terrorist attacks, British authorities would simply have to gather up all Pakistani immigrants, put them on boats and send them back to where they came from. And, just to make sure that no more bombs would ever explode in London’s subway, Royal Air Force would have to drop a few nuclear bombs on Pakistan – the issue would be resolved once and for all.
As a result, the country’s well-being would be assured for generations to come. However, this is not very likely to happen, as even British high politicians simply lack a coherent understanding of what the concept of a nation’s well-being stands for. They are not ready to admit the existence of “nations of terrorists”, while even faced with overwhelming evidence that this is the case. They are not ready to admit that the future wars are going to be “wars in the crowd” and that they would be fought on the streets of their towns. Instead, British and American military personnel are being deployed to impose democracy upon those who despise democracy on a genetic level, which undeniably proves the absence of a coherent military strategy, on the part of Western governments.
In his article “Morality and High Technology”, Andrew Basevich makes a valid point, while bringing readers’ attention to the lack of geopolitical insight, on the part of America’s military leadership: “Many observers of the American scene have noted of late that military prowess alone – no matter how prodigious – cannot compensate for the lack of a coherent strategy” (Basevich 1996).
Conclusion
As we have mentioned earlier, war is nothing but “kings’ last argument”; therefore, before deciding to proceed with indulging in hostilities, politicians must have a clear understanding of war’s actual goals. It is only within a context of waging fast and radical (total) war when implications of Jus in Bello and the Doctrine of Double Effect might come in handy. However, given the fact that future wars are likely to be characterized by the absence of a frontline (soldiers and civilians cannot be distinguished) and by their lengthy duration (providing quarters to prisoners of war will become utterly unfeasible), it would only be logical, on our part, to conclude that the application of both concepts, during the time of military hostilities, can no longer be thought of as fully appropriate.
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