Moral Dilemmas of Modern War: Torture, Assassination, and Blackmail in
an Age of Asymmetric Conflict, Michael L. Gross (Cambridge: Cambridge
University Press, 2009), 321 pp., $92 cloth, $29.99 paper.
C.A.J. Coady (Reviewer)
Michael Gross believes that much contemporary warfare is so different from past
armed conflicts that many of the old moral and legal prohibitions should no
longer apply. This belief unites a variety of intellectuals and many political
and military practitioners. It was a keystone of the neoconservative declaration
of "the new normal" that influenced President George W. Bush's political
mind-set.
Gross writes fluently, with a wealth of realistic examples, touching on the
issues of the immunity of noncombatants, the associated rejection of terrorism,
the prohibitions on torture, targeted assassination, and hostage taking. He
makes many interesting observations (the discussions of proportionality and
of nonlethal weapons are particularly thought-provoking), and he shows sensitivity
to the complexities of modern armed conflict and the force of the typical moral
qualms that he challenges. Nonetheless, but there are a number of assumptions
in his argument that this reader finds problematic.
The first is his basic point of departure about the radical difference of contemporary
wars; the second is the way he tends to conflate the common practices of adversaries
with the moral (or legal) norms that should govern their behavior; and the third
concerns his approach to the moral basis for the norms of war.
One of Gross's
key claims for the novelty of much contemporary armed conflict concerns the
lack of reciprocity in asymmetric conflict. He also claims with respect to some
new wars, notably wars against terrorists, that the "weaker" side's
lack of interest in a political settlement marks a striking departure from traditional
war. A crucial premise in his moral case for revisions is the claim that normative
restrictions on the conduct of war must accommodate the "right to a fighting
chance" (p. 39) enjoyed by both sides. This claim consorts closely with
his emphasis on the importance of military necessity and the need to accommodate
morality (or "humanitarianism") to it.
Gross stresses the way in which international law's abandonment (in Protocol
I of the Geneva Conventions) of the requirement that hostile forces wear distinguishing
uniforms puts pressure on the capacity to respect noncombatant immunity, especially
when insurgents use the cover of civilian areas, such as towns and villages.
He thinks that this abandonment is justified by the right to a fighting chance,
which in turn must allow the side with uniforms to take a more relaxed attitude
to noncombatant immunity. But the novelty of armies having to deal with nonuniformed
insurgents is exaggerated. The German army in World War II had to confront the
non-uniformed French Resistance forces, and the French and American forces in
Vietnam had much the same problem with the Vietcong, as did the French in Algeria
and many other colonial powers facing resistance in the more distant past.
In addition, the whole notion of asymmetric war, in spite of its popularity,
is a doubtful tool for analysis. In Iraq and Afghanistan, the "weaker"
sides seem primarily defined by the fact that if they were to engage solely
in traditional set-piece battles, they would do badly. But this counterfactual
test is of limited interest, as is technological superiority itself, since simple
technology, such as the now popular improvised explosive device, is often highly
efficacious in context, and more complex technology at sufficiently effective
levels is increasingly available to insurgents. Nor is pressure to expand the
category of combatant unique to asymmetrical war, since it was a striking feature
of the "total war" mentality of such conventional conflicts as World
War II. Gross's claim that "terrorists" and some other participants
in new wars are uniquely uninterested in political settlements is misleading,
since many insurgents using terrorism aim at clear, negotiable political objectives
(for example, ending occupation), whereas the Allied commitment to unconditional
surrender in World War II was an outright rejection of political settlement.
If the reality of contemporary war is not so radically new, then Gross's revisionary
case has less force; but in any event we should distinguish between changes
that make it more difficult to apply rules and changes that require completely
new rules. It is hardly news that when armies find it hard to win by fair means
they play foul, but Gross's deference to the demands of military necessity and
the supposed role of reciprocity often blurs the distinction between what people
are likely to do and what they ought to do. Thus, he claims that in "technologically
unmatched [conflicts where] reciprocity breaks down completely—non-state
or rogue state actors will not always receive
combatant equality" (p. 50). But the question is: should they?
Further, in discussing relaxations of noncombatant immunity, he often talks
of civilians becoming more "vulnerable," whereas the question is not
whether they are more likely to be attacked but whether they should be. Certainly,
where one state has no reason to fear equal retaliation from an enemy, it will
be tempted to violate moral constraints. But this is not a normative fact, as
Gross sometimes realizes, but often forgets. He seems to think that the moral
constraints on fighting methods are somehow based on explicit or implicit agreements
related to mutual advantage. But the concern for noncombatant immunity is much
deeper than that: it rests partly on the need to restrict the carnage of war,
but also on the fact that armies have no right to attack those who have no serious
role in prosecuting the putatively unjust activities that legitimate lethal
resistance. Hence, noncombatants remain immune whether or not their immunity
obstructs someone's supposed right to a fighting chance. If some group cannot
have a good enough chance of winning a war without poisoning water supplies
or massacring children, then bad luck.
In fact, some of Gross's suggested changes need not rely so heavily on his fighting
chance/reciprocity story, since he argues, for instance, that many civilians
should be treated as combatants or "quasicombatants" based on the
role that they play in the conflict. This is a reasonable starting point and shows that the
terms "civilian" and "noncombatant" should not be treated
as coextensive. Even international law allows that civilians taking an active
part in hostilities are not entitled to noncombatant immunity. Nonetheless, there is room for dispute about the degree
of involvement that forfeits immunity. Gross wants to allow certain sorts of
attacks on "associated targets" where civilians as "indirect
participants" are "quasicombatants," but he is unclear about
why attacks on them are legitimate or what sort of attacks on them are allowed.
It seems he would prefer nonlethal attacks on banks, media outlets, welfare
offices, or schools so that they are "disabled" by serious harms short
of death. But in his discussion of Israel's more lethal attacks on such institutions
in the second Lebanon war of 2006, he objects only that they may have been ineffective,
whereas the prior question is whether the contribution such institutions and
people make to a war is significant enough to make them morally liable to attack.
This is glossed over by Gross's concern that without that liability the stronger
side "quickly runs out of targets" (p. 160).
Gross concedes that relaxed constraints should apply equally to the strong and
the weak. But they do not apply to some groups, notably terrorists, and their
application to other weak parties is sometimes hedged by circumstances. Thus,
certain forms of torture, such as waterboarding, are legitimate for the strong,
but the weak seem denied them because they are unlikely to find the techniques
as profitable or be in a position to make use of them (p. 139). In sum, Gross
often seeks a middle position between radical rejection of accepted norms and
strong defense of them, but surely many readers will find that his "moderation"
offers too much license for atrocity and brutality.
—C. A. J. COADY
C. A. J. (Tony) Coady is a Vice Chancellor's Fellow and Professorial Fellow
in the Centre for Applied Philosophy and Public Ethics at the University of
Melbourne. His most recent books are Morality and Political Violence (2008)
and Messy Morality: The Challenge of Politics (2008).
