March 14, 2022
Image credits: Wikimedia Commons
As its title suggests, this text is on the ethics of war and the ratification of the additional protocols to the Geneva Conventions. It ruminates upon the old adage, “war is well”, so as to call to question as to whether, during war, any ethic can be meaningfully invoked. It, later, cites a key letter, written former president, Ronald Regan, in a presentation of the longstanding objections to the ratification of Protocols I and II of the Geneva Conventions. It agrees and expands upon Reagan’s suggestion that we should ratify Protocol II and responds to his objections of ratifying Protocol I. It was, originally, primarily written as a work of philosophy, but is, here, presented as persuasive argument in favor of ratifying both of the additional protocols to the Geneva Conventions.
It has oft been said that “all is fair in love and war”, but I believe for its opposite to be true. In love, in the ecstatic disclosure of one’s psyche to another, in a mutually autonomous process of becoming, in the cultivation of an authentic way of life, the ethical commands with such gravitas that every slight, every thoughtless act, every failure to provide the other with poetic truth causes such pain, such woe, such acute despair that I can only think to characterize their hurt by a “wound”. Love demands a near ascetic devotion to the other. It is not a realm where the ethical is suspended; it is one where it is rendered absurd. Alas, however, this is not a treatise on love. It is on war. As taken as I am within the labyrinth of my thought, I think that I ought to lead us somewhere.
I do not think, in good faith, that I could even begin to write about war without mentioning that I am a pacifist. If you are curious, I happen to have formerly ascribed to a hyphenated political philosophy that is as wildly unpopular in the far-left as it is considered antiquated by most other political theorists. Though I do adhere to a more or less strict nonviolence, I am willing to make an exception for the necessity of engaging in conflict within the specific case of the Second World War, which may lead some to suggest that I am actually a just war theorist. As I do not make an exception for more or less any other war, I think it most sensible to just call myself a “pacifist”. Regardless of what we are to refer to my chosen political philosophy as, I think it clear that my pre-established beliefs may inform the conclusions that I will draw within this text. Should I fail as a philosopher and for them to, then I should like to lay them bare.
As a philosophical work, the purpose of this text is to defend that war is not characterized by a complete suspension of the ethical. As a political one, it is to present an argument in favor of the United States government ratifying the First and Second Geneva protocols. As there is no reason to agree to any rules of engagement if no ethic can be meaningfully invoked, I will first defend that there is an ethic even to war.
In war, the potential for the most wanton destruction, the most shameless opportunism, the most vehement vengeance, and the most ruthless competition all arise. Without war, we would have no reason to condemn any human acts as “evil”. It is from war that both extremities of human cruelty have been coined, that of “genocide” in the elimination of an entire otherized body-politic, and that of “torture” in the only violent act that makes murder seem like mercy. War, it has often been said, is hell. Hell, according to certain Christian cannons, is a world without God. As I am an atheist, I see little reason to invoke the divine in a defense of pacifism. I would prefer, however, to consider the divine as the domain of the ethical. In war, the most fundamental of all human rights, that of the right to life, is suspended. Are we, then, to conclude that all bets are off? Is, as the saying goes, all fair in war?
As much of a relic of the aristocracy chivalric codes may seem to us now, they ought to indicate to us that there is a basic desire for soldiers to fight in accordance with some form of right. At a very basic level, an army can stand no chance of winning a battle if its soldiers have no will to fight. The semblance of right, of course, can be all too easily established. In the old days, a soldier was thought to fight for honor and glory, quite noble virtues in their own right, but, with the sanction of either the Crown or Cross, could all too readily justify the many personal feuds to have inspired wars between kingdoms or outright conquests, such as the Crusades. Anymore, a soldier is considered to have sworn an oath to protect the nation of which they serve. The very basis for a soldier’s way of life has been inspired by just war theory. We do not think of soldiers as men set out upon a heroic quest; we consider them as the first line of defense against the crime of aggression. What we believe, however, does not necessarily say anything about the nature of the ethical.
War presents ethics with an all too readily apparent challenge. Hell describes the extreme poverty of human relations wherein any form of trust becomes as if it were impossible.[i] In Hell, one can only expect for the other party to be merciless. A “world without God” is a world without trust, a world without mercy, and a world without ethics. If such a world exists, then it will be difficult lay claim to any form of right in war with anything but a noble lie. War is truly hell, I think that goes without saying, but, like any maxim, I would warn against believing in it literally. It would, perhaps, be better to say that war opens the gates to hell, a tormenting world that our pathological fears all too often lead. To see to it that the excess of violence does not become a hell on Earth, we must become willing to take the leaps of faith in that our enemies, whether right or wrong, will retain enough of their humanity to still be capable of showing mercy. Only when we acknowledge that even members of the Waffen SS, or whatever other embodiment of martial evil you should like, are still, at least, capable of restraint, can we expect for the many disparate paths of war to lead somewhere other than such an unholy Rome.
The assumption of mutual mistrust, often a well-founded one, is pathological. It becomes as if it were true because it is believed to be so. If I assume that my enemy will be willing to engage in any form of human depravity to secure the advantage with which to win, then, I cannot help but conclude that I should, in turn, return the favor. War is, in some sense, a prisoner’s dilemma. The worst possible collective outcome is born out of a rational and self-interested choice on both sides. A soldier, however, has no will to engage in a shambolic exercise in excessive wrath. Excessive violence degrades not only the victims of an attack, but also those to have carried it out. Even were soldiers to be amoral, the excess of violence can not help but seem anything other than a façade. If it is well known that there are revolts to crush, then it can not but help be concluded that a state is insecure. This, I believe, is an apparent poverty to totalitarianism, but I think that a similar logic could be applied to war. While it is true that, prima facie, the spectacle of violence is designed to instill popular terror, it just simply is not possible for a regime to sustain such conduct, as doing so once will invariably lead to that they will have to do so again. As much as the Blitzkrieg raid raised alarm around the world of the military might of the Third Reich, such an excessive tactic ought to have informed the Allied powers that their regime could be nothing but suicidal and self-destructive. The aristocrats considered for it to be beneath them to duel someone who was not of their class, as it would reveal that their authority was in crisis to condescend to such a duel. By a similar token, any true chauvinist knows better than to become a brute.
Soldiers, of course, are not amoral. Faith in their cause is a virtue to them beyond the contest of wills that comprised of aristocratic chauvinism. Whether or not they are, they do care to be in the right. Though I could not prove for this to be the case, as it is a speculative meta-narrative on an unsung and unrecorded history, I suspect for it to be from soldiers themselves that there eventually came to be rules of engagement. We, of course, understand their canonical history as having been born from military theorists, but, when they are not subject to the extremities of war, why bother? At any rate, a war can not be waged without soldiers, and by that there are but a few mercenaries, adventurists, profiteers, and the like whom we would generally describe as being “amoral”, I think it safe to assume that there is, at least, some ethic within war that can be meaningfully invoked.
Civilians, often living in occupied territories or having to flee actual warzones, also have a vested interest in retaining something like rights. Though often ignored within martial history, at least up until the end of the First World War, they do happen to be within the majority of our moral community and, primarily, the set of society from which soldiers are drawn. The First World War was nothing but catastrophic. It quite literally carved through the Earth. Entire cities were destroyed and millions of people died. It is with the First World War that bleak depictions of conflict came to be popularized. Due to the wanton destruction incurred, the general populace could not help but believe that such conflicts should be avoided in the future. The League of Nations, of course, was entirely lacking in success as per its primary objective in peacekeeping, as the First World War was followed by the Second, but it was in response to an apparent catastrophe that at least some form of peacekeeping was established and substantiated by international law. This, I believe, has something to say about war and the nature of the ethical.
I posit that the ethical was born in response to the collective violence that we now call “war”. As I can not return to a so-called “state of nature”, nor can I study one, as there is no archaeological record of such a form of human community, I can only speculate. It seems doubtful to me, however, that anyone should care to consider whether or not it is fair that this or that homo sapien has taken more of their share of meat or hide when, perhaps most notably, after the invention of weapons, they could do so by threatening to kill the other members of the tribal band. There first, perhaps, must have been subjugation, though, as it is a rule enforced by terror, it is a kind of civil war that is waged through deterrence. Given whatever anyone wants to posit as the original evil, the real need for something like ethics within human society would seem to have been born out of the devastation enacted by warring tribes. Rather than speculate upon some hypothetical primordial form of life, however, I would prefer to look at the Twentieth Century.
For all we ought to laud of modernity, it culminated within the world’s most excessive conflict and key example of genocide. Neither the excess deaths to have occurred within the former Soviet Union nor the People’s Republic of China, both of which, unless you want to fault the Axis powers for nearly all of the war deaths, outnumbered the people to have died during the Holocaust, occurred during a time of war, but they did occur in the wake of their respective civil conflicts. Nearly all of the atrocities to have occurred during the Twentieth Century, notably that of the most excess deaths and instances of atrocities in all of human history, have occurred during wars, with the remaining outliers almost all either precipitating or following them. If we can not say that all is not fair in war, what good is ethics at all?
I, flat out, do not care as to whether or not a person is in the right in pirating an album by Animal Collective. Sure, there is some practical wisdom to gain by thinking about the ethics of everyday life, but, if at their most pertinent they do not apply, I fail to understand why they ought to be taken seriously. If we can not say that genocide, torture, imperial conquest, or the indiscriminate massacre of civilians are wrong, then why at all bother with the circumstances under which a person is obliged to tell the truth? Surely that a person tells their employer that a family member has died so that they can attend a concert by The Felice Brothers is a less pressing ethical concern than the systematic elimination of an entire racialized body-politic, and yet we seem to be entirely willing to entertain that “all is fair…in war”, all the while ready to criticize such a person for merely seeking a night out. Loathe as I am to say so, I am here reminded of the words of Karl Marx when he criticized ideology in Germany as being indicative of “bourgeois morality”.[ii] With the ostensive inculcation of the so-called “superstructure” aside, the supposed lack of ethics within war ought to be indicative of a collective crisis of priority. What matters is what can happen because of war. What we can be entirely indifferent to are petty and personal slights.
War is the horror of hell that reveals the need for ethics. Their very raison d’être can not result in their total suspension. We can now say that all is not fair in love and war. Whatever you should like to call the “political economy” of the United States of America has not refused to ratify the First and Second Geneva protocols due to a pure negation of the ethical, however. They, at least on paper, have refused to do so out of concern for our national sovereignty and in explicit opposition to aiding and abetting terrorist organizations. Before I respond to a key text written by former president Ronald Reagan, which I believe encapsulates the American mien in this regard, I should like to provide a brief history of the protocols themselves.
On the 22nd of August in 1864, the First Geneva Convention was held. It established the International Committee of the Red Cross, immunities for sick and wounded soldiers, the neutrality of the organization in its treatment of combatants, protection for civilians aiding the wounded, and the recognition of the Red Cross symbol identifying people and equipment enacting relief work. On the 18th of May in 1899, Tsar Nicholas II and his prime minister initiated the First Hague Convention, which established rules of engagement both in regards to jus ad bellum, or when it is acceptable for a state to wage war, and jus in bello, or the rules of engagement. On the 15th of June of 1907, at the suggestion of former president, Theodore Roosevelt, the Second Hague Conference began. It modified and expanded upon the previous one.[iii] The Second Geneva Convention, which extended Red Cross operations to the sea, was held in tandem. The first adoption of the Third Geneva Convention, relative to the treatment of prisoners of war, was enacted in 1929. The Fourth Geneva Convention, adopted in August of 1950, consolidated the First, Second, and Third, and became the customary humanitarian international law as it concerns the sick, wounded, shipwrecked, prisoners of war, civilians, and members of the Red Cross during a time of war. After the Fourth Convention was adopted, it became common to merely refer to them as the “Geneva Conventions”.[iv]
On the 17th of June in 1925, the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare, prohibiting the use of chemical weapons, was signed. It was put into effect on the 8th of February in 1928. In 2005, Protocol III, which establishes the Red Crystal as an alternative symbol to the Red Cross, was signed. The United States of America has signed and ratified all of the aforementioned conventions and protocols. However, it has only signed, but not ratified, Protocol I and II.
Protocol I extends the conventions to “international conflicts”, effectively conflicts involving national liberation movements, communist guerrillas, so-called “Islamic extremists”, or others characteristic of contemporary asymmetrical fourth-generation warfare. Protocol II extends the conventions to “internal conflicts”, i.e. civil wars. Protocol I and II were brought about due to the changing nature of warfare in the wake of decolonization.
It is, first and foremost, obvious to me that the continued decision not to ratify Protocol I indicates that the United States does not intend to abide by international law, as such conflicts are the only conflicts in which it is engaged. Without ratifying Protocol I, we might as well set all of the treaties on fire in Times Square, as if in feigned moral outrage over the public statements of John Lennon. So as to spare you that I should like to write, I will say something of Protocol II before I address the letter written by Reagan.
I do not understand why we have not ratified Protocol II. The United States is neither engaged nor in danger of having to respond to a civil war. Reagan himself even recommended ratifying it in his letter. The arguments against ratifying Protocol II usually revolve around national sovereignty, but they are, by that account, antithetical to the very idea of international law. If any nation-state is to be expected to enforce rules of engagement during a civil war without there being an international body that mandates that it abide by them, then we can expect nothing but their willful violation, as the very people prosecuting such acts will also be among those to have carried them out. I can not characterize the resistance to Protocol II as having been made in good faith. It seems to express more of an aversion to international law than anything else. I will now turn to Reagan’s letter.
On the 29th of January in 1987, Reagan issued a letter to the Senate detailing his reasons in favor of ratifying Protocol II and against ratifying Protocol I. In it, he affirms his commitment to the Geneva Convention and draws a parallel between it and Protocol II to offer an argument in favor of ratifying it. He then goes on to write, “while I recommend that the Senate grant consent and advice to this agreement, I have at the same time concluded that the United States cannot ratify a second agreement on the law of armed conflict negotiated during the same period. I am referring to Protocol I additional to the 1949 Geneva Conventions”. He claims that the protocol has “meritorious elements”, but is “irreconcilably flawed”. He highlights its caveat in treating “wars of national liberation” as “international conflicts” and goes on to write, “to rest on such subjective distinctions based on war’s alleged purposes would politicize humanitarian law”. He then laments that it considers for soldiers who are not in uniform to be under its jurisdiction before suggesting that it “would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves.” He goes on to firmly aver, “we must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law.” He requests advice from the Senate before concluding, “I would also invite an expression of the sense of the Senate that it shares the view that the United States should not ratify Protocol I, thereby reaffirming its support for traditional humanitarian law, and its opposition to the politicization of that law by groups that employ terrorist practices.”[v]
In retrospect, there is, of course, an apparent hypocrisy in that the administration to have primarily armed, trained, and funded the mujahideen should have been so concerned with so-called “terrorism”. That Reagan was hypocritical, however, does not invalidate his argument.
As my counterexample to his concern over national liberation movements is the largest conflict within all of postmodernity (the First, and moreso, the Second Congo War), I think it is fairly easy to dismiss. Such conflicts were the shape in which warfare took in the wake of the outset of decolonization.[vi] They are often not, as he claimed, localized conflicts dealing with individual terrorist cells. They span large geographical regions and, in the case of the Second Congo War, resulted in over five million deaths.[vii] If the Red Cross cannot provide relief within such conflicts, then it may as well not exist. Though painfully clear that contemporary humanitarian law has been ineffective in such conflicts, if it is not within them that we should see it established, then it can only be meaningfully abandoned. That the inclusion of the phrase “national liberation movements” as an example of a party engaged within an asymmetrical fourth-generation conflict somehow politicizes humanitarian law, however, is spurious and absurd. Protocol I was established to cope with the nature of contemporary conflict. It does not play part and parcel to some kind of communist conspiracy.
His second concern, however, is a bit more salient. There are obvious strategic difficulties in extending the rules of engagement to an enemy who can not be identified. The utilization of civilians as cover is criminal, but it is a tactic that terrorists rarely employ. They do tend to dress in fatigues and, though their safe houses tend to be in populated cities or sympathetic rural villages, it is not as if the resistance is run out of the bar you see in the cinematic classic, Casablanca. The safe houses and camps are where their operations are orchestrated and they can be easily separated from the rest of civilian life. Personally, I don’t think that there is too much of a need for any nation-state to have a clandestine law enforcement agency, but if the intelligence community must do something, then I would suggest that it could be put to the use of countering terrorism in the manner in which it is effective to do so, which is as a law enforcement operation, and, notably, not a military one.
When Reagan claimed that international humanitarian law has been politicized so as to aid and abet terrorist organizations, he was not really raising an objection to the potential ramifications of the letter of the law, as he has presented in his letter. He was, rather, engaged in an overarching debate on its spirit, particularly as it relates to American foreign policy and so-called “counterterrorism”. The United States, for reasons that are beyond me, seems to believe that terrorism can be effectively countered through military intervention. Terrorist acts are, in and of themselves, acts of provocation. The purpose of engaging within such acts is to lay bare the oppression of their either real or perceived adversaries. It is to draw out the tanks, as it were, for the world to see the people stand before them. In the wake of our disastrous War in Afghanistan, in the eyes of every Muslim to have mistaken jihad for a sanction of total war, we appear as a wounded Goliath.[viii] Though I do not fear that this nation should fall, I should like to think of it better than a brute. I do not agree with Reagan’s aversion to the spirit of Protocol I. It is within its spirit to affirm that the rules of engagement apply, regardless of what form the conflict takes. The United States does not like what it implies, as we have consistently written off the excess deaths of civilians as “collateral damage” and continue to utilize torture for what, on paper at least, is deemed necessary “information”, in our ostensive efforts to bring an end to the so-called “War on Terror”. While certainly the rationale behind it, that we are on the run from international law is no excuse for its violation.
I think it plain that we ought to ratify Protocol I and II. It would be a show of good faith to the international community and could begin a new era of counterterrorism. It has been forty-five years since 1977. Should anyone read this, I should hope that they will see to it that it does not take another forty-five before the additional protocols to the Geneva Conventions are ratified.
[i] It is relevant to, here, say “as if”.
[ii] I don’t remember exactly where this phrase appears, but do believe for it to be within The German Ideology. It’s something that Marxists say all of the time, anyways.
[iii] The Editors of Encyclopaedia Britannica. “Hague Convention”. Encyclopedia Britannica, 8 Jun. 2021, www.britannica.com/event/Hague-Conventions. Accessed 16 December 2021.
[iv] “History of the IRHC”. The International Committee of the Red Cross. www.icrc.org/en/history. Accessed 16 December 2021.
[v] Reagan, Ronald. “Letter of Transmittal”. Written to The Senate of the United States of America from The White House. Published by The American Journal of International Law, October 1987. pp. 910-912.
[vi] Decolonization, notably, is an ongoing process.
[vii] Bavier, Joe. “Congo war-driven crisis kills 45,000 a month: study”. Reuters, 22 January 2008. www.reuters.com/article/us-congo-democratic-death-idUSL2280201220080122. Accessed 16 December 2021.
[viii] I should like to point out that jihad is actually an early form of just war theory. It is even possible that Thomas Aquinas was somehow influenced by the Muslim conduct towards the Crusaders, particularly under the reign of Saladin.
Thank you to Dr. Gregor Thum of the University of Pittsburgh’s Dietrich School of Arts and Sciences’ Department of History for providing insightful feedback.
Image Credit: Lieutenant William Rider-Rider, Official Canadian War Photographer, August 1918 / Wikimedia Commons
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