The Difference Uniforms Make

The 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 a enjoy because they enjoy the political status of citizens, not because they wear the uniform of a In actual this a regime like that of the First Protocol which permits by non-uniformed combatants fighting for or a political category of collective violence. I from that regime in one PI as a of law, is consistent with the of jus ad from jus in My for the privilege to some otherwise combatants a and by the of the First a number of both practical and this may be for all But that we understand the deep between responsibility for war and the of warfare, than simply their The of an regime of war which I now The first is even if a state is engaged in war (in violation of the UN or of war in an its forces enjoy a to and kill enemy combatants subject to norms of proportionality and This is no one defend a murder on the that he special in the of his killing. are it is a that the rules of IHL are independent of the of the war This a deep can be means of The of the normative of IHL brings into question the of its This is the of the A variant of this has among to the law of can be any the field of If a war is then any done in its are even if they are It is to see a normative regime can that some of these not or by uniformed are than that they are and the others Even in a war, killing is a out of than is in one might among the In domestic criminal law while we in to the of killing, the most for the most forms of killing, we do not among the of But international law on and of killing in war the of combatants, to and the to and are by their good The permission to kill the of these is the to combatants to their compliance with I this now to for I I do not believe it for normative and I it fails to a central of the of its is a of the rules of IHL come from the rules the treatment of combat. The rules thus have their in a conception of and again an to the on which they This point is a of our might in fact provide the of the norms these support for of But it is a that an to to a more certain than the of one the of these we need a of which can be these in the question of whether to battle to the irregular combatant appears than it a of the and of additional that a in the would need a deeper can identify three for the for the privilege of uniformed combatants. The first is the modern conception of where the of the state was with its This most by of the was as a and claim as a for political According to the of political authority a between the agent who authority and the subject who receives The of an agent who was at the a or, a subject who was by laws he himself was for a a in place between the in its and its the moral of the state cannot to its as the fact that the might a does not mean that a in his is also liable for that so the fact that the was at war with state would not mean that his were at war with the other War not in moral a between the soldiers actually the They are the for the The moral and of state from thus up a for a of for an independent of the legitimacy of their The war is not about it is about their the field of combat, is for of especially with to the norms of and between civilians and soldiers. The permission to kill these under this is not a deep of killing, in the sense that it does not the killing the permission the moral status of the soldier soldier, who was not to his in the war before or his but only his conduct in the war. for the war itself to the A the privilege to the uniformed sense in the context of this conception of sovereignty, although the of uniforms While uniforms were before the modern they did not in as the of national until the when his army and the to a with the uniforms of the The of in fact the of a of the army and the hand in A that war should be between uniformed combatants simply the claim that war is a between not the of to subject is an external on this of the power of the to follows that the of combatant to would also be through external The uniform is, in the of the on his army, and this renders the external of what they killing to the than to The of an of the privilege in need not be the between state and it depends is not under conditions of But a and more of the privilege from the conception of that in This is the conception we from in the that not only can a collective or itself law, but that law is a condition of political and It follows from that a is when and only when their individual in the form of their is linked in the he the A whose wills are so linked are committed to together in the of on the basis of a of and that their When this is a a moral and collective made up of as members as the has and which receives by this act its its common its life and its The thus by the of all the others the and now that of or of which its members call when it is when when it to The on this is but not to the individual taken This is because the is a among not a set of The individual their their voluntary commitment of their to their collective this of their wills is what the of to even a the to for do not because one the of the an of the of a their in a Their relations as members of the as participants in the collective of themselves as individuals is what response to as to a can war, conceived as a between linked as can be from a between individuals What would to from is that in war, soldiers to one as than as individuals. an of international not an of their this is not what What he is not then a relationship between one and another, but a relationship between one and another, in which individuals are only by not as nor even as citizens, but as not as members of the but as its its this is why should in war encounter each other only as soldiers and not as As with of this an by in the is to limit the power of by the of the of His is to the traditional to the His must be if war is between and if of and if soldiers each other as well as soldiers), then in a war state it is not simply to its one must kill or its To this of must that on the battlefield norms to the of the soldier, not the more of the of has two for The first is at in his claim that whether he be a a or a who or without war on their is not an he is a the of war is the of the enemy one has the to kill its as long as they bear but as as they their arms and they to be or the and become simply once and one no has a their A of war is a special of

Criminology · Legitimacy · Political science · Politics · Sociology · Spanish Civil War · Free Will and Agency · Law · Torture, Ethics, and Law · War, Ethics, and Justification

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