Law and War

In the wake of Kendall-Smith’s conviction, it seems as if the question of legality will again go underground. We can reasonably ask, as Antoinette does, “Why should we worry about legality when there’s a political solution available?” Protest politics need not trouble itself with the weak fictions of international law, we might argue, since the moral infraction is clear. In the last fifty years, it has become conventional wisdom that the winners prosecute the losers for their war crimes while ignoring their own. Our behavior at Nagasaki, at Dresden, in the Falklands, at Abu Ghraib, among the Viet-Nam era Tiger Force, these things go unprosecuted because those who have been injured have no authority, and those who have the authority do not have the will.

No matter how damning the eventual loss, there’s no question of war crimes tribunals for the coalition forces. Domestically, the most we can hope for is to punish the Iraq-hawks through politics: vote them out and sideline their legislative agendas. Why, then, should we care whether the war is illegal?

If it weren’t for Kendall-Smith, I’d probably agree. But given the assymetrical influence of the soldiers and junior officers paying the price in this war and the citizens and politicians championing it, I suspect that the breakdown of this conflict must begin in the military’s ranks. In order to preserve our sense of supporting the troops, we will have to be made to believe that our support is best expressed by bringing them home rather than leaving them there. As with any ongoing military campaign, the wear and tear of fatalities and retirements, combined with a considerable compunction at enlisting during active hostilities will degrade our effectiveness. The stop-loss policies in place (otherwise known as the backdoor draft) have already reduced morale and enraged military families.

So what happens when soldiers refuse to fight? If they have no legal recourse, the penalties will become increasingly stringent, and our all-volunteer fighting force will increasingly come to resemble an army of conscripts. If, on the other hand, soldiers can muster out with reference to their own moral judgments, becoming conscientious objectors after the fact, then the military will have to fight with fewer and fewer soldiers, and eventually they’ll either institute a draft (if national security is actually at stake, which it clearly isn’t) or declare strategic victory and a beat a retreat (sorry, an ‘advance-towards-the-rear’.)

In this way, supporting the legal arguments against the war is a way of supporting the troops and hamstringing jingoistic politicians. So, I’ll begin, and y’all can join in when you catch the tune: why is the war illegal? Well, to begin with, a war is illegal if it’s either begun illegally or conducted illegally. Hmmm….

More later.

Kendall-Smith and Kant: Can the Critique of Practical Reason make you ethical?

Ever since Adolf Eichmann pretended that Kant’s theory of ethics could be used to defend his actions, I’ve wondered whether moral philosophers really have any tendency to be better people, or to live better lives. As Arendt put it in Eichmann in Jerusalem, “He did his duty… he not only obeyed orders, he also obeyed the law…. No exceptions–this was the proof that he had always acted against his ‘inclinations,’ whether they were sentimental or inspired by interest…. [Many Germans] must have been tempted not to murder… and not to become accompliced in all these crimes by benefiting from them. But, God knows, they had learned how to resist temptation.”

Well, it looks like at least one British Royal Air Force officer has actually discerned his moral duty through the haze of propaganda and pathological temptations. Flight Lieutenant Malcolm Kendall-Smith, an RAF doctor who wrote a master’s thesis on Kant, has argued that the illegality of Britain’s participation in the invasion of Iraq required him to refuse an order to deploy to Basra, after serving two tours of duty in Iraq. My favorite line is a direct reversal of the Eichmannian formula: “I am a leader. I am not a mere follower to whom no moral responsibility can be attached.”

Sadly, it would appear that he was not able to make the case for illegal warmaking, as the court martial argued, following Eichmann: “Such crimes cannot be committed by those in relatively junior positions such as that of the defendant.” By stripping him of the responsibility and capacity for judgment that would be necessary to object to illegal orders, the court martial declared that only powerful and important people have the moral authority to understand their legal and moral obligations. In this, they set a precedent for many more incidents likes those at Abu Ghraib.

I applaud Kendall-Smith’s refusal to sacrifice his own judgments for those of his superiors. I applaud his courage to stand for the moral law over the petty instantiation of it we saw in the court marshall. Would that others, on both sides of this conflict, had the same courage.