The Difference Uniforms Make: Collective Violence in Criminal Law and War
2005; Wiley; Volume: 33; Issue: 2 Linguagem: Inglês
10.1111/j.1088-4963.2005.00028.x
ISSN1088-4963
Autores Tópico(s)Free Will and Agency
ResumoThe wars in Iraq and Afghanistan have put front and center the problem of dealing with non-uniformed combatants. They have also made central deep questions of the legitimacy of resorting to martial violence, and responsibility for picking up the pieces thereafter. I argue here that the special problem of non-uniformed combatants and the general problem of justifying war are profoundly linked. War, I shall argue, is but one form of a more general species: collective violence. Collective violence poses a particular set of challenges to the application of moral principles. In what follows, I identify a conflict between two themes in our response to collective violence. I call these themes of inculpation and exculpation. I illustrate these themes with three stories derived from actual events. Smith and Daniels approach Taylor. Daniels tells Taylor that Jax Liquor would be a good target for a robbery. All they need is a car and getaway driver. If Taylor will sit outside the liquor store till Smith and Daniels come out, he’ll get a third of the haul. Taylor is in. Smith and Daniels come into the store, Smith waving his gun, both shouting, demanding the money. But the situation fails to unfold as planned. Linda West, the owner's wife, is working in the back of the store when she sees the men. Fearing that Smith is about to shoot, she grabs the gun in her pocket, and shoots and kills Smith, then wounds Daniels as he runs to escape in Taylor's car. Taylor and Daniels are later arrested. Taylor, although he did nothing more in preparation for the robbery than sit in his car, is charged with both robbery and murder, for Smith's death. Though Ms. West actually shot Smith, the death is treated as causally flowing from Smith's own and Daniels’ frightening gun-waving during the robbery, and as a species of murder because it manifests an extreme indifference to human life. By the logic of accomplice liability, according to which any member of a criminal group is liable for any reasonably foreseeable acts done in furtherance of the group's common design by any other member, Taylor is also responsible for Smith's death. The result is that Taylor may be convicted of a murder he did not commit, or even cause. Imperioland has invaded its small but oil-rich neighbor, Petrostan, in order to seize its oil wells. Sergeant Blue, of Imperioland's volunteer Army, is aware that world opinion holds Imperioland's invasion to be a flagrant violation of international law, but he follows the judgment of his political leaders. Blue, however, intends to fight the war in full compliance with the international law of combat, known as jus in bello or, more currently, as International Humanitarian Law (or IHL). IHL is independent of the legality of the conflict itself (the rules governing which are known as jus ad bellum). Among its principal requirements are that soldiers proportion the violence they deploy to military necessity, discriminate between combatants and non-combatants (a category including civilians and wounded and surrendered soldiers), and respect the life and well-being of anyone not currently a threat, including surrendered or injured enemy combatants. Blue's squad is ordered to capture an engineering building at one of the refineries. Blue enters the building. He shoots and kills the Petrostan soldiers on guard. His mission appears successful. And because Blue killed only combatants, it was unquestionably consistent with IHL. Suddenly a company of Petrostan's soldiers arrive and capture Blue. He is sent to a detention camp, called before a military tribunal, and charged under Petrostan's domestic criminal law with murder, for the intentional killing of the sentry, not in defense of himself or others. He is sentenced to death. Before the sentence is carried out, a member of Petrostan's foreign ministry arrives. Petrostan (like Imperioland) is a Geneva Convention signatory, and the minister is waving a copy of the Third Geneva Convention, which deals with combatants taken prisoner (often abbreviated as GPW, for Geneva–Prisoners of War). According to the GPW, Blue, as a regular, uniformed soldier, must be treated as a “privileged combatant” and can only be held as a Prisoner of War. This means he cannot be punished for his killing (assuming it did not breach the laws of combat). He may be held in captivity only until the cessation of hostilities.2 Though Blue kills without justification, as a soldier he is impunible. The tide turns in the invasion, and Imperioland's troops begin to rout Petrostan's army. Remaining members of the army doff their uniforms, move to the back country, and become a partisan resistance. They are joined in their efforts by Petrostan citizens, and foreigners from the region who infiltrate the border and join the resistance. Gray is a foreigner who wants to join the partisans. She too crosses the border, affiliates with a partisan unit, receives weapons training, and is sent out to fight.3 The partisans’ resistance is classic guerrilla strategy: they hide among the population, and seek low-intensity engagements. To paraphrase Raymond Aron, they believe they will win so long as they do not lose their ability to inflict losses, and that Imperioland will lose so long as it does not wipe them out.4 Their goal is to protect and restore the political institutions of Petrostan, as well as to defend a religious and cultural tradition they reasonably see as under threat by the occupation. The partisans strike only at military targets, and are as scrupulous as Sgt. Blue about observing the international law of combat. But, unlike Blue, they do not wear uniforms or otherwise reveal their identities as combatants, because it would be certain death or capture. Only when they draw their weapons in battle do they reveal themselves as combatants. Gray is preparing for an assault when her house is swarmed by Imperioland soldiers. She is armed but not uniformed. Imperioland has ratified the GPW, which accords POW status only to combatants who wear uniforms or otherwise bear “a fixed distinctive sign recognizable at a distance.” But it has not ratified the additional Protocol I to the Conventions, which broadens combatant status to non-uniformed, “liberation”-seeking members of the armed forces of a party to the conflict, and who bear their arms openly while engaging in or preparing for military operations.5 Like Blue, Gray is brought before a tribunal and charged with conspiracy to commit murder and sabotage. Her claim that she is a combatant entitled to POW status is dismissed. While she is spared from the death penalty Imperioland's regulations permit, she is sentenced to indefinite confinement at an Imperioland prison. (The Imperioland army fears, reasonably enough, that Gray when released will rejoin the fight.) These stories reflect the differential treatment of collective violence in law and ethics. I put this in terms of two conflicting themes. The first is the theme of complicity, and every jurisdiction in the world plays a variant of it. Ordinarily moral responsibility and criminal liability attach to an agent only on condition that the agent has performed a wrongful act, perhaps producing a wrongful result. This is a principle of individual culpability, and requirements (in Anglo-American terms) of the existence of a culpably done criminal act and proximate causation of a result undergird and limit the attribution of wrongs to individuals. Complicity doctrine, however, attaches liability through a different route. Even though individuals on their own might have done nothing wrong, they can be held responsible for someone else's wrongful act, if they are members of a group whose other members do wrong in furtherance of a joint criminal plan. To put the point more strongly yet, so long as any member of a group with a criminal project does a foreseeable wrong, each member of that group bears responsibility for the wrong. Take Taylor, from Crime Story: driving a car to, and sitting in front of, a liquor store one hopes to rob is not itself wrongful. Those acts, on their own, would probably not support a conviction of attempted robbery in most jurisdictions, as they fall short of a “substantial step” towards the crime's completion.6 Taylor's liability rests not on what he actually does, but on a combination of what he intends to do—participate in an armed robbery—and what he might expect his fellow participants to do— instigate a shooting. His complicity in the group robbery renders him liable for another's killing. This I call the theme of collective inculpation. A contrasting theme, of collective exculpation, runs through the law of war. The function of the law regulating the conduct of war (IHL) is to demarcate a zone of impunible violence: killing, maiming, and property destruction. The boundaries of this zone are set chiefly by the rules of proportionality and discrimination mentioned above; but the central presupposition of the zone is the collective, political character of the violence: these acts are only impunible when committed by a member of the armed forces of a state or insurgent party to the conflict (provided they are otherwise in compliance with IHL). Sergeant Blue kills by his own hand and without justification, and so would be guilty of murder if he were simply trying to rob the refinery. But because he is a member of Imperioland's army, no liability attaches to him personally. Even if Blue fires the only shot in the war, he bears no liability for the killing. Moreover, the injustice of his army's war is irrelevant. Blue's permission to kill depends on the fact that he is part of a certain sort of group collectively intent on violence. This ought to be shocking but it is all too familiar: participants in normalized mass killing, territorial occupation, and political transformation enjoy permission to do together what would be infamous crimes if done separately. Non-uniformed fighters like Gray mix both themes. Is rebel Gray more like Taylor or more like Blue? Should she be inculpated or exculpated? Gray's cause, Petrostan independence, is presumptively just, unlike Blue’s. But, Gray, unlike Blue, may be criminally liable, and executed or detained indefinitely. Her legal status depends on a two-step analysis: first, Gray's acts are removed from the context of a collective partisan resistance and she is treated as an individual with criminal intent. Next her collective status is reasserted in the complicity or conspiracy charge. Like Taylor, she is liable for rebel-caused deaths whether or not she fires a shot. My subject is the contrast between the themes of collective inculpation and collective exculpation, and the tension that arises when the two themes encounter each other in the treatment of irregular, usually non-uniformed combatants.7 These are individuals engaged in the ordinary business of war who, if they were part of conventional military units, would enjoy impunity so long as they proportion their violence to military necessity, and discriminate between civilians and combatants. The case of non-uniformed, irregular fighters is of course an especially current practical challenge for the law of war. It also brings into the open the question why certain forms of collective action privilege violence, while others serve as the basis for punishing it. The European partisans of World War II fighting Nazi occupation are exemplars of this category, including the storied Maquis of France. Others include the anti-colonial rebels of the developing world. The anti-colonialist movements were a major motivation for the 1977 Protocols amending the Geneva Convention provisions; Article 44 of the First Protocol (hereafter PI 44) specifically deals with question of irregular combatancy. PI 44 permits violence by insurgents and partisans who conceal their status generally but engage openly in combat. Protocol I was widely ratified, thus binding its signatories, who do not include the United States but do include most other major powers.8 Modern examples of irregular fighters, to whom the application of PI 44 is controversial, include the Taliban and Al Qaeda fighters in Afghanistan, the Fedayeen and Baathist resistants in Iraq, the posses of Afghan and Somali warlords, and some of the Colombian anti-government rebels, in whose disputes U.S. forces are entangled. More pointedly, so may be U.S. Special Forces soldiers and CIA field operatives, who typically serve out of uniform and without clear insignias of their national affiliation. (Recall the photos during the Afghanistan war of U.S. Special Forces riding their horses in the company of the Northern Alliance.9) The category of irregular combatants is not new but its instantiations have increased (perhaps because of greater U.S. military adventurism). As has been widely discussed, this is a consequence of three principal “developments” in modern violence.10 First, state military conflict today rarely occurs in the form of major battles between armies, but increasingly through the tactics of “asymmetrical” warfare, including guerrilla raids, hiding among either one's own or one's enemies’ populations, infiltration of enemy lines, sabotage, and joint operations with collaborating civilians. Second, recent conflicts are increasingly transnational in character, where the transnational element includes collaborations between intelligence units of one nation and military units of another, or involves foreign volunteers linked by ideological or religious affiliations. Again, this is not new—witness the Spanish Civil War—but it is resurgent with militant Islam. Relatedly, some recent conflicts have been neither internal to a state nor transnational, in that they have taken place in political conditions where no state exists because power is too fragmented. Somalia is a prime example. The third development is the renascent phenomenon of war through mercenary proxies, which predated the modern era of war, subsided during the consolidation of state power, emerged again during decolonization, and then subsided once more. It is now again on the rise through the distinctly post-modern phenomenon of the “corporate warriors,” who provide outsourced logistical and “tactical” (read lethal) support to everyone from the U.S. Army to the UN to Sierra Leone to the petroleum industry.11 Modern combatants look increasingly unlike the army regulars around whom the Geneva conventions were drafted. The results of these developments are troubling. It is, at the least, conceptually anomalous that greater numbers of combatants in modern war fall outside the regime crafted to control war's violence. It poses a practical problem, in that if combatants lack impunity for engaging in violence bounded by the norms of proportionality and discrimination, they have no incentive to observe these bounds. And it is a legal problem, in that we lack criteria to assess the legitimacy of the treatment of the large number of irregulars captured on the battlefield and held indefinitely by occupying powers. As ever more warfare involves stipulatively unprivileged combatants, the normative systems controlling war become more and more strained. If lawlessness is a problem, an even deeper problem is normlessness. What norms should we adopt? What difference should uniforms make? I look at and reject some traditional answers to the problem, including answers generated by pre-modern conceptions of sovereignty, and by straightforward consequentialist reasoning. Instead I turn to a modification of a tradition inaugurated by Rousseau, who conceived political authority as resting in a special relationship among individuals. When individuals’ wills are linked together in politics, this affects the normative valence of what they do individually as part of that politics, even to the point of rendering impunible what would otherwise be criminal. The salient Western form of these political relationships is democracy, which I understand here as involving some form of majoritarian decision making, coupled with a universal franchise. But by “political” I shall mean any forms of social action oriented around state or institutional formation, where power may in some sense be seen to rest at the level of individual voluntary commitment to the shared project. (Thus, I mean to contrast “political” relationships with authoritarian, fear-motivated hierarchical relationships.) A consequence of my conception of political authority is that permission to engage in collective violence turns on combatants’ attitudes and relations to one another, not any external sign of their obedience, including wearing a uniform. Put directly, citizen–soldiers enjoy combat privileges because they enjoy the political status of citizens, not because they wear the uniform of a soldier. In actual policy terms, this article defends a regime like that of the First Protocol (PI 44), which permits combat by non-uniformed combatants fighting for “liberation” or “self-determination,” a paradigmatic political category of collective violence. I depart from that regime in one important respect, however. PI 44, as a matter of positive law, is fully consistent with the separation of jus ad bellum from jus in bello. My argument opens conceptual space for denying the privilege to some otherwise lawful combatants waging clearly unjust wars, a position considered and rejected by the drafters of the First Protocol. For a number of reasons, both practical and conceptual, this logical space may be closed for all likely cases. But principled reflection demands that we understand the deep links between responsibility for war and the privileges of warfare, rather than simply assert their separateness. The very idea of an ethical regime of war generates paradoxes, which I now consider.12 The first paradox is substantive: even if a state is illegally engaged in war (in violation of the UN Charter now, or of just war principles in an earlier day), its forces enjoy a right to wound and kill enemy combatants subject to IHL's norms of proportionality and discrimination.13 This is puzzling: domestically, no one could defend a murder on the grounds that he had shown special delicacy, à la Hannibal Lecter, in the manner of his killing. Means are normatively inert. Yet it is a commonplace that the rules of IHL are independent of the justice of the war itself.14 This commonplace obscures a deep puzzle: how can there be permissibly violent means of pursuing impermissible ends? The very premise of the normative independence of IHL brings into question the nature of its justification. This is the paradox of permitting the impermissible. A variant of this paradox has frequently provoked puzzlement among newcomers to the law of war: how can there be any significant distinctions within the field of killing? If a war is unjust, then any killings done in its prosecution are unjust, even if they are permissible. It is therefore hard to see how a normative regime can determine that some of these unjust killings (for instance, killings not using dum-dum bullets, or killings by uniformed combatants) are categorically better than others, such that they are permitted and the others banned. Even in a just war, killing is a terrible thing, permitted out of necessity rather than utility. Once necessity is in play, one might think, distinctions among necessary killings seem somehow beside the point. In domestic criminal law while we sometimes grade punishment in relation to the manner of killing, reserving the most severe sanctions for the most heinous forms of killing, we do not distinguish among the varieties of justified killings. But international law promulgates precisely such distinctions. An instrumental answer comes forth immediately: restrictions on methods and targets of killing in war reduce the suffering of combatants, risks to non-combatants, and the costs to states, and hence are justified by their good consequences. The permission to kill within the bounds of these restrictions is the bribe paid to combatants to induce their compliance with them. I mention this justification now to acknowledge it, but, for reasons I elaborate below, I do not believe it accounts for IHL's normative authority, and I think it particularly fails to justify a central feature of it, the categorical quality of its rules. There is a related historical point. Many of the customary rules of IHL come from the chivalric tradition, particularly rules regarding the treatment of those hors de combat. The rules thus have their ground in a conception of warrior virtue; and again an instrumental account seems inadequate to the underlying ethical view on which they draw.15 This point is hardly decisive, since a revisionary account of our intuitions might in fact provide the best justification of the norms these intuitions support (as, for example, Mill argued of utilitarianism). But it is a prima facie objection that an instrumental justification seems to “argue back” to a conclusion more certain than the path of argument itself.16 However one assesses the force of these considerations, then, we need a framework of principles within which those considerations can be deployed. Without these broader puzzles in sight, the question of whether to grant battle privileges to the irregular combatant appears easier than it is: just a matter of estimating the marginal costs and benefits of additional suffering that a change in the rule would impose. We need a deeper solution. We can identify three sources for the conceptual foundation for the privilege of uniformed combatants. The first source is the early modern conception of sovereignty itself, where the concept of the state was wholly identified with its ruler. This notion, theorized most radically by Jean Bodin's 1576 Six Books of the Commonwealth [Six livres de la République], was as much a logical and metaphysical claim as a prescription for political unity. According to Bodin, the very idea of political authority requires a distinction between the agent who exercises authority and the subject who receives it.17 The idea of an agent who was at the same time a subject, or, alternatively, a subject who was bound by laws he himself imposed, was for Bodin a logical impossibility.18 With a firm distinction in place between the state, embodied in its ruler, and its subjects, the moral qualities of the state cannot flow logically to its inhabitants. Just as the fact that the sovereign might incur a debt does not mean that a given peasant in his realm is also liable for that debt, so the fact that the sovereign was at war with another state would not mean that his subjects were at war with the other state. War could not be, in moral terms, a relation between the soldiers actually doing the fighting. They are merely the technology for resolving the interstate dispute. The moral and metaphysical separation of state from subjects thus opens up a logical space for a distinct code of ethics for soldiers, an ethics independent of the legitimacy of their sovereigns’ dispute. The war is not about them, it is about their sovereign. Within the field of combat, there is room for codes of chivalry, especially with regard to the norms of respecting surrender and discriminating between civilians and soldiers. The permission to kill within these limits, under this theory, is not a deep justification of killing, in the sense that it does not justify the killing itself. Rather, the permission reflects the limited moral status of the soldier qua soldier, who was not expected to justify his role in the war before God or his conscience, but only his conduct in the war. Responsibility for the war itself belonged solely to the sovereign. A further norm restricting the privilege to the uniformed makes sense in the context of this conception of sovereignty, although the regular wearing of uniforms post-dates Bodin considerably. While uniforms were hardly unknown before the modern period, they did not feature prominently (at least in Europe) as the garb of national militias until the seventeenth century, when Oliver Cromwell dressed his citizen army uniformly; and the trend came to a head with the elaborate uniforms of Frederick the Great.19 The systematic uniforming of armies in fact tracks the post-Westphalian establishment of a system of internally ordered, sovereign states. Disciplining the army and disciplining the nation-state go hand in hand.20 A norm that war should be between uniformed combatants simply mirrors the claim that war is a relation between states, not citizens. Because the basic relation of sovereign to subject is an external relation, on this conception—a matter of the power of the sovereign to compel obedience21—it follows that the relation of privileged combatant to sovereign would also be established through external mark. The uniform is, in effect, the stamp of ownership the sovereign puts on his army, and this stamp renders the external quality of what they do, namely killing others, attributable to the sovereign rather than to themselves. The inadequacies of an account of the privilege grounded in Bodin-esque sovereignty need not be belabored: the separation between state and citizens it depends upon is not sustainable under conditions of mass, bottom-up politics. But a second and more resonant conceptual source of the privilege emerges from the rival conception of sovereignty that superseded Bodin's in modern, post-Enlightenment thought. This is the conception we take from Rousseau. Rousseau famously argued in the Social Contract that not only can a subject, collective or individual, give itself law, but that giving oneself law is a necessary condition of political freedom and legitimate authority. It follows from this, Rousseau thought, that a people is sovereign when and only when their individual agency, in the form of their wills, is linked in the structure he calls the “general will.” A people whose wills are so linked are committed to acting together in the interests of all, on the basis of a distribution of rights and responsibilities that guarantee their equal freedom. When this is so, a people produces a moral and collective body made up of as many members as the assembly has voices, and which receives by this same act its unity, its common self [moi commun], its life and its will. The public person thus formed by the union of all the others formerly assumed the name City and now assumes that of Republic or of body politic, which its members call State when it is passive, Sovereign when active, Power when comparing it to similar bodies.22 The sovereign, on this conception, is dependent upon but not reducible to the individual citizens taken together. This is because the sovereign is a relation among wills, not a set of persons. The individual citizens retain their personal wills, notwithstanding their voluntary commitment of their rights to their collective sovereignty. Indeed, this retention of their personal wills is what explains the self-evident strains of committing oneself to even a just polity: the temptations to free-ride for personal benefit do not disappear merely because one acknowledges the force of the public interest. Thus sovereignty reflects an aspect of the citizens of a state, their public face in a sense. Their relations as members of the sovereign—or, better, as participants in the collective achievement of sovereignty—to themselves as private individuals is what enables Rousseau's response to Bodin as to how a sovereign can bind itself.23 So war, conceived as a relation between peoples linked constitutively as sovereigns, can still be distinguished from a relation between individuals per se. What would seem to follow from Rousseau's account is that in war, soldiers relate to one another as citizens rather than as individuals. Thus, an ethics of international relations, not an ethics of interpersonal relations, constrains their conduct. Interestingly, this is not what Rousseau says. What he says instead is: “War is not then a relationship between one man and another, but a relationship between one State and another, in which individuals are enemies only by accident, not as men, nor even as citizens, but as soldiers; not as members of the fatherland, but as its defenders.”24 On its face, this is puzzling: why should men in war encounter each other only as soldiers and not as citizens? As with much of Rousseau's writing, answering this demands recognizing an imprecision forced by context. Rousseau's concern in the sentences above is to limit the power of victors by defining the scope of the relation of enmity. His specific task is to deny the traditional victor's right to enslave the vanquished. His argument must therefore be that, if war is between states, and if states consist of citizens (appropriately bound), and if soldiers confront each other as citizens (as well as soldiers), then in prosecuting a war against another state it is not sufficient simply to disarm its solders; one must further kill or enslave its citizens. To deny this line of reasoning, Rousseau must show that on the battlefield norms appropriate to the circumscribed role of the soldier, not the more expansive role of citizen, determine the range of permissible acts. Rousseau has two arguments for doing so. The first argument is at work in his claim that [t]he foreigner, whether he be a king, a private individual, or a people, who robs, kills, or detains subjects without declaring war on their prince, is not an enemy, he is a brigand. . . . Since the aim of war is the destruction of the enemy State, one has the right to kill its defenders as long as they bear arms; but as soon as they lay down their arms and surrender, they cease to be enemies or the enemy's instruments, and become simply men once more, and one no longer has a right over their life.25 A declaration of war is a special kind of collec
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