The peril of excusing war crimes
In the lead-up to the third US presidential debate, Australian media were firmly focused overseas—presumably awaiting the next controversial piece of outrage from then candidate Trump. Would it be comments about sex or race? Would he again criticise the military strategy against ISIS? Perhaps he would again call for waterboarding, torture and the targeting of the innocent families of known terrorists.1
Had they kept an eye closer to home, more might have noticed our own Senator Jacqui Lambie making some Trump-esque proposals of her own. Lambie, a former soldier, asked Senate Estimates to consider offering ‘pre-emptive pardons’ to Australian soldiers accused of breaching the Geneva Conventions or committing war crimes. The measure would, as Buzzfeed’s Mark di Stefano reported, show an ‘extraordinary debt of gratitude’ to Australian soldiers.2 To the senator’s chagrin, her proposal was rejected. In a media release, she said:
Australian citizens and politicians owe an extraordinary debt of gratitude to ADF members who risked their lives killing enemy who do not follow Geneva conventions or any rules of war … and that extraordinary debt of gratitude could be best expressed by this government supporting a pre-emptive pardon for any ADF member accused of war crimes during their service in the Middle East.3
Lambie justifies her casual attitude towards war crimes and human rights in a slighter deeper way than Trump’s mix of pragmatism and vengeance (he has expressed support for torture regardless of whether it works or not). For Trump, it’s about winning the war and punishing the bad guy; for Lambie, it seems to be about duty of care—forcing Australian soldiers to adhere to the law and morality of war means depriving them of certain strategies that could minimise casualties.
For both, extremists such as Islamic State don’t show any restraint in their mode of combat. Given this, to impose strategic or moral restrictions on our fighting men and women is tantamount to asking them to do their job with one hand tied behind their back. Morality is a luxury they simply can’t afford. Watered down to their purest form, both proposals demonstrate a willingness to protect soldiers’ bodies at the expense of their humanity; to do the unthinkable before the unthinkable is done to us.
In one sense, these proposals are the natural continuation of steps that became commonplace in the Obama administration. For example, the increasing use of drones instead of fighter pilots is a move towards disembodied warfare that similarly pays little mind to the psychological and moral toll inflicted on drone pilots. In another sense, it goes much further. While the moral status of drones is contested by some, it seems at least possible to deploy them against legitimate combatants in a war zone. Countenancing the explicit commission of war crimes—to the extent US generals rebuked Trumps’ pro-torture stance and suggested the orders would be disobeyed4—indicates this move goes beyond being the ‘natural extension’ of US drone policy (one of Obama’s first steps was to repeal directives authorising torture).5
It’s been widely accepted among moral philosophers and theologians for some time that a just war is preferable to an unjust peace. What’s now being called into question is whether an unjust war is preferable to an unjust peace—if, that is, in the age of terrorism, asymmetric warfare and global intervention the categories of peace and war still hold any meaning at all. If we’re inclined to answer in the affirmative, which recent policy proposals suggest we are, it would represent a significant shift in the moral economy of war—the price of which would no longer be measured in lives and treasure but in our most deeply held communal and moral values.
Insofar as this shift is informed by significant claims about the place of morality and ethics in human community, it affects us all, but it is military servicemen and women who will feel, and are already feeling, the pinch. The testimony of veterans suggests they would have preferred to pay with their lives than live with the costs of trading on the values that define them.
The difficult task of removing morality as an obstacle to effective combat is made easier when it’s seen to serve a deeply noble cause: protecting the lives of our fighting men and women. Woven into this argument is a claim that is equal parts intuitive and misleading: that the worst thing to happen to a soldier at war is for them to die. It’s intuitive because we’re inundated with discussions about death as ‘the ultimate sacrifice’ and of fallen combatants having ‘paid the ultimate price’. However, as we encounter more and more testimony from veterans about living after war, it becomes easier to see that sometimes the sacrifice we ask of combatants isn’t that they die, it’s that they kill.
Killing is the prototypical crime. Moral codes around the world paint it not only as wrong, but as ‘the ultimate wrong’.6 Adam and Eve’s pride led God to curse the earth; Cain’s murder prompted God to punish humanity. And the ubiquity of Cain and Abel’s story is significant not because of its theological accuracy but because it demonstrates the depth of our cultural resistance to killing.
Our biology may well carry resistance of a similar depth. In his seminal work On Killing, Lt Col. Dave Grossman argues that ‘there is within most men an intense resistance to killing their fellow man’.7 This claim, which is evidenced with psychological theories and historical observations (such as the now famous example of multiple loaded weapons found on battlegrounds from the American Civil War), yields important implications for those interested in the post-war psychology of soldiers. If (i) there is a deeply held resistance to killing; (ii) killing is necessary for at least some military personnel; and (iii) participating in or witnessing violations of deeply held moral principles can generate moral injury, then there is a prima facie case to suggest that any member of the armed forces who is required to kill in the performance of their duties is put in a morally hazardous position.
In Oliver Morel’s Over the Bridge, a documentary exploring the postwar experience of US veterans, former marine corporal Ryan Endicott testifies to the moral seriousness of acting outside the deep norms against killing through the lyrics his song, ‘Boots Off’:
The smell of bleach, burns my hands as I
Try to justify—
Wash this blood off my hands.
I was just a boy, the first time I—
Killed a man.
If only I had known, I’d lose a part of my soul.8
Endicott’s story informs a broader discussion around the long-term effects of war trauma on veterans: PTSD, depression, substance abuse and a growing subject of study known as ‘moral injury’, which perhaps best describes Endicott’s own specific difficulties.
Although the concept of moral injury is old—as old as the concept of sin itself—the term has a much shorter history. It was introduced by the veterans psychiatrist Jonathan Shay. Shay listened to the testimony of a range of Vietnam veterans and began to discern nuanced differences between PTSD as a fear-conditioned response and another kind of trauma, which had more to do with moral judgement and guilt. In his influential Achilles in Vietnam, Shay proposed the concept of moral injury—which he describes elsewhere as ‘the soul wound inflicted by doing something that violates one’s own ethics, ideals, or attachments’.9
It’s important here to note that not all killing in war is unethical. Moral philosophers and theologians sympathetic to Just War Theory10—which is less a theory and more a 2000-year-long conversation about the ethics of war—have generally agreed that, at the very least, soldiers fighting for a just cause and targeting enemy combatants are not wrong in doing so. And yet the resistance to killing goes so deep it still threatens the conscience of those who do. The hazard is all the greater for those who genuinely violate moral norms on war’s own terms—say, by targeting noncombatants or torturing prisoners of war.
The significance of this concept for a proposal like Senator Lambie’s is more conspicuous given her proposal coincided with a public example of a moral injury. In the days preceding her comments at Senate Estimates, Kevin Frost, an Australian SAS soldier, admitted to involvement in the murder of a prisoner of war and the subsequent cover-up of the crime. He expressed a readiness—in fact a desire—to be punished for his actions. He told the ABC’s Andrew Greene, ‘I believe I should be punished with the full weight of the law—justly.’ He explains why:
It’s slowly and obviously surely eroded my self-esteem, my self-worth … Troubles in my relationships—you know, family and friends over the years—to the point where over the last couple of years I’ve had a real bad breakdown. Depression, all that sort of stuff, moving into post-traumatic stress. I’ve had to go to counselling and hospitalisation for that to the point where I’ve realised no amount of counselling can help you atone for your actions like this. What I’m doing here is the only way for this to be atoned for.11
It’s not surprising Frost found cold comfort in counselling sessions. Counselling often involves a ‘therapeutic gaze’ aimed towards healing—it focuses on the ‘injury’ dimension of moral injury.12 The injury receives the treatment, not the person bearing the injury. Approaching moral injury through this lens, which philosopher Nolen Gertz calls ‘PTSD theory’,13 is ineffective in cases where the trauma isn’t pathological in nature but is instead a genuine recognition of a deeper philosophical truth: what I have done has changed who I am and how I see the world.
This forms the launching-off point for most discussions of moral injury. Philosophers of war have generally accepted that what transpires during war is morally necessary but no less tragic or abhorrent for this. It entails death and destruction—and requires people who have been conditioned to avert themselves from such activities to define themselves by them. Then they have to return home to a world incompatible not only with what they’ve seen but with who they’ve become—and must somehow reconcile their dual identities as warriors and citizens. As Vietnam veteran Karl Marlantes writes in What It Is like to Go to War, ‘Warriors must learn how to integrate the experience of killing, to put the pieces of their psyches back together again. For the most part, they have been left to do this on their own.’
Adding to the challenge for Frost and others like him is not only the fact he was involved in killing a man, but also that he became associated with murder. In doing so, he violated deeply encoded cultural and biological norms as well as the code of honour that shields the character and moral wellbeing of soldiers from some of the costs involved with killing.
In The Code of the Warrior, Shannon E. French argues that warrior cultures, scattered historically and geographically, have developed ‘codes of honour’ or ‘warrior codes’: commonly held standards of what the ideal warrior does and does not do that bears normatively on each warrior in the culture. She refers to an incident in which a marine refrains from killing a noncombatant after receiving the simple rebuke, ‘Marines don’t do that.’
‘Marines don’t do that’ is not merely shorthand for ‘marines don’t shoot unarmed civilians; marines don’t rape women; marines don’t leave marines behind; marines don’t despoil corpses’, even though those firm injunctions and many others are part of what we might call the marines code. What marines internalise when they are indoctrinated into the culture of the corps is an amalgam of specific regulations, general concepts (e.g. honour, courage, commitment, discipline, loyalty, teamwork), history and tradition that adds up to a coherent sense of what it is to be a marine.14
The warrior code ensures that honourable, chivalrous and virtuous conduct is an intrinsic aspect of what it means to be a warrior. French opens her book by tracing her students’ distinctions between warriors, murderers, killers, fighters, victors and conquerors. What divides them, her students contend, is the explicitly moral focus of the warrior.15 This distinction is a central one for anybody interested in military ethics. If ‘war is hell’, and it so often is, soldiers are asked to walk through hell without becoming demons. This requires warriors to be able to distinguish themselves from murderers, killers and other pejorative labels that threaten to undermine the moral justifications for their deeds. To remain so distinguished, French contends that warriors ‘must learn to take only certain lives in certain ways, at certain times, and for certain reasons. Otherwise, they become murderers and will find themselves condemned by the very societies they were created to serve.’16
French observes the fall from soldier to murderer in the Iliad, when Achilles surrenders to his rage in desecrating the body of Hector and, in another instance, kills prisoners when previously he would have accepted ransom in exchange for their lives.17 Achilles is now a shell of a man, bent on revenge; in dragging Hector’s dead body around Troy he offends not only Trojans but also the gods. Having become a mere murderer, the man who was once Greece’s greatest warrior becomes little more than an animal—the god Apollo calls him a savage, a brute and a lion.
All this goes to show how Frost’s actions have doubly exiled him. He is no longer welcome in the family of arms, having violated the moral standings on which that family is based; nor is he welcome in broader society, having become a killer. What remains for him is, as he recognises, to seek forgiveness and atonement and thereby reconcile with the communities in which he no longer feels he belongs.
Proposals to legalise moral indiscretions, such as those of Trump and Lambie, sever those in need of atonement from the very thing they need; ironically for the purpose of protecting them, enabling them to flourish or as a gesture of gratitude. Attempts to strip war of what humanity it might possess while simultaneously remaining concerned for the humanity of warriors is impossible and the attempts to do so in the interests of either military strategy or veteran wellbeing undercut the genuine concern both Trump and Lambie have previously shown for veterans suffering from war trauma.
Legal sanctioning of behaviour that violates civilian cultural norms and professional codes of honour is likely to provide only platitudinous moral insulation for the people asked to torture (and, for what it’s worth, waterboarding is torture), target civilians or violate international law. All it manages to do is remove the possibility of atonement by way of punishment.
No good will be done by automatically forgiving those who have acted unjustly; forgiveness must feel deserved. Even soldiers who have not done wrong come home feeling powerful guilt for which they need to be forgiven, and those who have knowingly and intentionally violated their own codes of ethics will feel that guilt all the more sharply. There is a temptation to forgive soldiers for atrocities, explaining it as ‘duress’ or the ‘stress of war’. However, this type of well-intended but ultimately platitudinous forgiveness does little to allow soldiers to forgive themselves and redeem themselves; they know themselves to have done wrong and to be deserving of punishment.
If they feel that this punishment is not meted out, it is possible that any forgiveness will be seen as undeserved; indeed, it may well be seen as patronising. Immanuel Kant, for example, believed that any wrongdoing that was freely chosen had to be punished in order to respect the autonomous decision of the wrongdoer.18 Likewise, soldiers will enforce their own punishment—usually moral or psychological punishment in the form of self-evaluation, in extreme cases self-harm or suicide—if they feel that they have not been able to redeem themselves for the guilt that they feel.
What is required is a framework that removes from soldiers the burden of judging themselves: submitting them to external judgement by the community and serving any punishment justice requires. Kant believed in a kind of ‘natural punishment […] in which vice punishes itself’,19 and this idea appears to be at work in what Shay describes so accurately as ‘the ruin of character’. In its most destructive form, this self-punishment can lead to suicide, which has reached crisis point in veteran communities in Australia and the United States. Veterans who have died by their own hand are the unspoken body count of modern warfare. If they were factored into consideration, ideas to loosen soldiers’ moral constraints might be seen in a different light—not as a means to prevent soldiers from dying on the battlefield, but as a measure complicit in seeing more of them die at home.
1 Jenna Johnson, ‘Donald Trump on torture: “Torture works”’, Washington Post, 17 February 2016, <https://www.washingtonpost.com/news/post-politics/wp/2016/02/17/donald-trump-on-waterboarding-torture-works/>.
2 Mark di Stefano, ‘Australian soldiers should be pardoned from war crimes charges, says senator’, Buzzfeed, 19 October, 2016, <https://www.buzzfeed.com/markdistefano/lambie-war-crimes?utm_term=.vxEbVLX8K#.eyaKWap6X>.
3 Media release, ‘Liberals reject Lambie’s call for a pre-emptive war crimes pardon’, 19 October 2016, <http://senatorlambie.com.au/2016/10/liberals-reject-lambies-call-for-a-pre-emptive-war-crimes-pardon/>.
4 Peter Holley, ‘Former CIA director: Military may refuse to follow Trump’s orders if he becomes president’, Washington Post, 28 February 2016,<https://www.washingtonpost.com/news/morning-mix/wp/2016/02/28/former-cia-director-military-may-refuse-to-follow-trumps-orders-if-he-becomes-president/>.
5 Executive Order 13491, ‘Ensuring Lawful Interrogations’, <https://www.whitehouse.gov/the_press_office/EnsuringLawfulInterrogations>.
6 See, for example, Don Carrick, ‘The Future of Ethics Education in the Military’, in Paul Robinson, Nigel De Lee and Don Carrick (eds), Ethics Education in the Military, Ashgate, Cornwall, 2008, p. 195.
7 Dave Grossman, On Killing: The Psychological Cost of Learning to Kill in War and Society, 2nd edn, Black Bay Books, New York, 2009, p. 4.
8 Ryan Endicott, ‘Boots Off’, in On the Bridge, dir. Olivier Morel, Zadig Productions, 2011, accessed from <http://www3.nd.edu/~omorel/music.html>.
9 Jonathan Shay, ‘Moral Injury’, Intertexts, vol. 16, no. 1 (2012), p. 58.
10 Cf. Matthew Beard, ‘How should we think about war? Understanding Just War Theory’, the Conversation, 22 June 2015, <https://theconversation.com/how-should-we-think-about-war-understanding-just-war-theory-40321>.
11 Andrew Greene, ‘Australian commando claims he covered up POW’s execution: Supreme Court judge joins secretive Defence probe’, ABC News, 13 October 2016,<http://www.abc.net.au/news/2016-10-13/supreme-court-judge-examining-special-forces-conduct-afghanistan/7927420>.
12 Matthew Beard, ‘Conceptual differences between types of moral injuries and different ways of seeing them’, in Tom Frame (ed.), Moral Injury: Unseen Wounds in an Age of Barbarism, UNSW Press, Sydney, 2016.
13 Nolen Gertz, The Philosophy of War and Exile: From the Humanity of War to the Inhumanity of Peace, Palgrave Macmillan, Hampshire, 2014.
14 Shannon E. French, The Code of the Warrior, Rowman & Littlefield, Lanham, MD, 2003, p. 15. French’s story comes from Mark Osiel, Obeying Orders: Atrocity, Military Discipline, and the Law of War, Transaction Publishers, Piscataway, NJ, 1999, p. 25 (emphasis in original).
15 French, Code of the Warrior, pp. 1–2.
16 French, Code of the Warrior, p. 3.
17 Jonathan Shay, Achilles in Vietnam: Combat Trauma and the Ruin of Character, Scribner, New York, 1994, pp. 29–30.
18 Immanuel Kant, trans. and edit. Mary Gregor, The Metaphysics of Morals, Cambridge University Press, Cambridge, 1996, 6:355.
19 Kant, Metaphysics of Morals, 6:331.