One of the themes in Ned Dobos's challenging book Ethics, Security, and the War-Machine is that among the crucial costs of warfare is the likelihood—indeed, near necessity—of a great toll of noncombatant deaths and injuries in any contemporary war. Dobos sees this as contributing to his case that the maintenance of a large standing armed force is morally problematic. He devotes a section of chapter 4 of his book to those deaths that are accidental and incidental. In this essay, I focus on those deaths that are deliberate, though I also raise issues about those incidental casualties that need moral condemnation.
The violations that will concern me are predominantly those of the jus in bello conditions of just war, though I shall also argue that some could stem from the jus ad bellum. The former are closely related to what are legally dubbed “war crimes,” and, less technically, “atrocities”; the latter usually relate more to what are legally deemed “crimes against peace,” but I shall argue that they are equally war crimes and atrocities. For my purposes, war crimes will also include those versions of “collateral damage” in which harms to noncombatants are treated far too casually, without proper regard for either the proportionality of harms to noncombatants or for pursuing alternatives to attacking the target at all. Such serious negligence or even indifference shows a contempt for the status of noncombatants that can rival the intentional targeting of them.
I will also explore the nature and implications for the costs of warfare of what I call “the asymmetry myth.” This myth contributes to the likelihood that wars, just or unjust in their causes, will have a high moral cost because of the commission of war crimes; as a result, that cost is a matter that requires consideration in the jus ante bellum circumstances of preparedness for war as well as of conduct within it, and perhaps after it. Thus, its relevance to the case that Dobos makes.
The asymmetry myth, a deeply patriotic one that is influential in all countries, asserts that war crimes are committed by one's enemies but never, or hardly ever, by one's own combatants. If they do occur on our own side, the crimes are minimal in scale and perpetrated by the proverbial bad apple. The myth is particularly entrenched in governmental institutions, though it enjoys widespread—but not universal—popular support as well. It not only involves a common failure to properly acknowledge our own war crimes but also results in inadequate reactions when we are forced to recognize them. I will argue that its strength is sustained by certain forms of romantic nationalism linked to the glamorization of military endeavor. Such forms are often rhetorically invoked by national leaders, both democratic and authoritarian, to promote the resort to war itself and also to bolster profound respect and support for the military establishment.
When Dobos discusses the problems raised for modern military training and war making by their contribution to the killing of noncombatants in war, he too swiftly puts aside the problem of war crimes in order to concentrate on accidental killings, which he argues are “ineliminable” in modern war.Footnote 1 He argues, however, that “feasible measures” are available to eliminate or mitigate war crimes, and notes that some armed forces now go to considerable lengths to avoid them, especially unjustified collateral damage. I have serious doubts about this but will postpone discussion of it until later in the essay.
Illustrating the Problematic Nature of “Our” War Crimes
I will begin with the consideration of war crimes as the intentional killing of noncombatants (or those who are no longer combatants, such as surrendered soldiers), and for dramatic illustration, based on matters close to home (for me), I will review some recent Australian investigations and trace some of their less publicized historical backgrounds. I begin with the Australian situation partly because it is contemporary, but this is not to suggest that it is unusual. Indeed, I will show that it is indicative of a universal problem besetting war, just or unjust.
Grave allegations of war crimes committed by members of the Australian Special Air Service Regiment (SAS) in Afghanistan have been recorded in two extensive reports commissioned by the Australian army following revelations in the media. The alleged crimes reported in the media include a highly decorated senior soldier kicking an unarmed, handcuffed civilian off a cliff, before ordering another soldier to shoot him dead; junior soldiers being “blooded” by their superior officers, ordering them to kill “passive” captured prisoners and then plant non–Australian Defense Force weapons on the bodies; and numerous incidents of the deliberate killing of noncombatants.Footnote 2
The most recent report, covering the period of 2006–2013, was delivered to the Australian government by the inspector general of the Australian Defence Force (ADF), Major General Justice Paul Brereton, on November 19, 2020. It had been precipitated in 2015 by independent military sociologist Samantha Crompvoets's inquiry into allegations by disillusioned fellow members of SAS as well as Afghan civilians. Brereton reported that among numerous incidents examined there was “credible information” for twenty-three in which noncombatants or captive combatants were intentionally killed where no “heat of battle” circumstances existed.Footnote 3 Crompvoets had argued that the alleged war crimes were not isolated incidents but symptomatic of wider cultural problems in the SAS unit and possibly beyond in senior military circles.Footnote 4
Such was the severity of the alleged crimes that, prior to the report's heavily redacted public release, the Australian prime minister, Scott Morrison, announced: “This is going to be very difficult for Australians. It is going to be very difficult for our serving community and our veterans’ community. It is going to be difficult for all of us.”Footnote 5 Morrison's comment about the “difficulties” is indicative of the hold that the asymmetry myth has on political leaders and, more widely, on the civilian community of a country involved in war making. The prime minister then announced yet another inquiry (ongoing at the time of this essay's writing) to examine the report's findings with a view to action and possible criminal charges.
In the wake of the Brereton report, the chief of the ADF, General Angus Campbell, recommended that an existing meritorious unit citation be revoked for SAS's Special Operations Task Group. This created a storm of criticism from politicians, SAS soldiers and their relatives, and right-wing media. Later, a new defense minister, Peter Dutton, rejected the decision to revoke the citation, claiming that “we shouldn't be punishing the 99 per cent for the sins of one per cent.”Footnote 6 Dutton, of course, produced no evidence that the “sins” were restricted in this fashion, but his comment was indicative of the “just one bad apple” mantra that is often invoked in reaction to revelations of war crimes.
It is worth a brief reflection on this mantra. What is invariably forgotten is that the bad apple metaphor cannot be relied upon to minimize the collective implications of moral decay. The metaphor's origins date back centuries and are plucked from a longer proverb: “One bad apple spoils the barrel.” The phrase was used to dramatize how the rotten behavior by one or a small number of people is bound to infect those around them. It might also plausibly be extended to suggest that faults in the construction and maintenance of “the barrel” give rise to the first bad apple and assist the spread of corruption to the others. This original meaning has in contemporary political usage been twisted and reversed; it is now deployed not only to isolate a single miscreant but to defuse criticism of institutional and cultural defects that are indicated by exposure of particular misdeeds.
Sadly, it is of course true that the atrocities detailed above are not unique to the circumstances of the Afghanistan engagement. For example, there is now general scholarly agreement that Australian troops, among other Allied forces, often killed captured Japanese troops during the Pacific campaign.Footnote 7 There is even evidence of such misconduct in the Australian War Memorial in Canberra if you look hard enough. Journalist Paul Daley points out, for instance, that there is a drawing in the memorial by the official war artist Ivor Hele unambiguously entitled Shooting Wounded Japanese, Timbered Knoll (1943).Footnote 8 This appears in an institution heavily dedicated to positivity about Australia's war efforts.
Continuing back in history, in his memoir of World War I, Good-Bye to All That, Robert Graves narrates what he says is “a first-hand account” of an Australian soldier's slaughter of surrendering German troops after the capture of Morlancourt. The Aussie “Digger” discovered a dozen German soldiers hiding in a cellar and shouted to them to come out, which they did unarmed and with raised hands. He ordered them to turn out their pockets, and he found “watches, and gold and stuff, all dinkum.” He then said: “‘Now back into your cellar, you sons of bitches!’ For I couldn't be bothered with ’em. When they were all safely down I threw a half a dozen Mills bombs in after ’em. I'd got the stuff all right, and we weren't taking prisoners that day.”Footnote 9 Graves tells of even worse atrocities by Canadian troops against defenseless prisoners and also admits to British soldiers killing captured German soldiers. It is possible, of course, that some of these firsthand stories were invented by those telling them to boost prestige with their audiences, but that only makes sense against a background of widespread belief that such crimes were praiseworthy.
Earlier still, there is the case of the two Australians, Harry “Breaker” Morant and his companion Peter Handcock, who were executed in 1902 during the Boer War in South Africa for killing Boer prisoners. Although there is some continued controversy about the circumstances surrounding the killings, the case against the pair was very strong. The questioning of their guilt seems, more than having any factual basis, indicative of the Australian public's tendency to reject the reality of war crimes committed by their own. Morant has been glamourized by much of the Australian media and the public as a sort of war hero, notably in the movie Breaker Morant.Footnote 10 Petitions, even in the early 2000s, were sent to the British Crown to secure a pardon for Morant and Handcock, though they were unsuccessful. The sole plausibility in the case for them is that, though guilty of the crimes, they were also scapegoats, given that similar offenses may have been committed by British troops due to a general order to take no prisoners that had apparently come down from the higher-ups, potentially from Lord Kitchener himself.
Australia Is Not an Exception
The Australian story is, of course, not singular. Dreadful atrocities committed by the Japanese during World War II, for instance, are well known, publicized, and rightly condemned outside Japan, but the truth about them is frequently elided, obscured, or denied outright in Japanese culture.Footnote 11 These atrocities were committed against innocent civilians and very often against captured prisoners of war. Yet the American atomic bombing of Hiroshima and Nagasaki, with the intended and successful killing of an estimated 120,000 noncombatant civilians, meets all the moral criteria, and current legal criteria, for a war crime in spite of the various “justifications” offered about ending the war early, saving the lives of allied troops, and so on. Most of these justifications parallel those offered by theorists and politicians for other “necessary” atrocities, and I have examined and criticized seven such justificatory efforts at length in my recent book on terrorism.Footnote 12
On a lesser scale, but one indicative of wider concerns, American troops during the Vietnam War killed hundreds of unarmed Vietnamese women, children, and old men, and raped women and young girls in the village of My Lai. Significantly, the courageous American helicopter officer Hugh Thompson intervened to halt the killings and helped expose the atrocities. Thompson's intervention was important, as it indicated a capacity to recognize that war crimes were being committed by one's own and to reject them as morally and legally indefensible. Yet eventually only one soldier, Lieutenant William Calley, was charged, convicted, and sentenced to life imprisonment. But even with Calley, public outcries, legal appeals, and presidential intervention meant that he served a mere three years, mostly under house arrest. This stands in stark comparison to the execution of over nine hundred Japanese war criminals after World War II.
As recently as 2019, President Trump pardoned three members of the armed services accused or convicted of war crimes in Afghanistan, overruling military leaders who had sought to punish them.Footnote 13
In recent decades, more historians have begun to acknowledge the existence and extent of war crimes committed by their own soldiers or those of their allies. It seems clear that some offenses—such as the deliberate killing of surrendering or already captured enemy troops; the killing of civilians, whether directly or in unjustified collateral damage; and the raping of civilian women—can be commonplace events in warfare. The distinguished military historian Antony Beevor, for instance, caused consternation and widespread fury in Russia as a result of his revelations in 2002 of Soviet troops’ brutal violations in World War II during their advance into Germany; in particular, their mass rape of German women.Footnote 14 In a later book, Beevor addressed war crimes committed by both German and American soldiers during the “Battle of the Bulge.” He highlighted the incident in Chenogne, Belgium, on January 1, 1945, where sixty German prisoners were shot after bitter fighting. According to Beevor, General George C. Patton wrote in his diary, “There were some unfortunate incidents in the shooting of prisoners. I hope we can conceal this.”Footnote 15 Even in the immediate aftermath, Patton seemed to understand the need to preserve the American public's faith in the asymmetry myth.
At this point, it is worth returning to Dobos's claim that some contemporary armed forces have successfully availed themselves of “feasible measures” to avoid collateral damage war crimes. He quotes Neta Crawford's impressive book on collateral damage: “The US military increasingly emphasized civilian protection during the wars in Afghanistan and Iraq at rhetorical, doctrinal, and operational levels. Minimizing collateral damage went from being one concern among several, to an imperative that was institutionalized to a degree that it had never been before.”Footnote 16 Crawford also reports the claim that of the “pre-planned [U.S.] air to surface and artillery operations where collateral damage estimation and mitigation practices were used, less than 1 percent resulted in collateral damage.”Footnote 17
Such claims seem to me deeply implausible in light of the facts about civilian deaths in those conflicts, and the implausibility illustrates the power of the asymmetry myth. In assessing such facts, the consideration of nonmilitary sources is important. Brown University's Costs of War project, for instance, in a report partly authored by Crawford, estimated that by October 2019 about 227,000 civilians had been directly killed in the U.S.-initiated wars in Iraq and Afghanistan.Footnote 18 No doubt a substantial number of these civilians would have died at the hands of U.S. adversaries, but given the massive presence of the U.S. military and its use of air-power bombing, it beggars belief to think that only about 1 percent of the deaths resulting from U.S. bombing was collateral damage. This suggests that the U.S. military's declared measures of “estimation and mitigation” were remarkably ineffective. Several explanations of its ineffectiveness are possible. One is that the policy claims were largely declarative public relations exercises, and hence not seriously intended or enforced. Another explanation is that the claims’ intentions were genuine but frustrated in practice by an unwillingness on the part of service members to comply with the policies and by a failure in enforcement accompanied by a reluctance to acknowledge one's own war crimes.
What gets counted as “collateral damage” is also important in understanding this landscape. The term is widely abused, but if it means the legitimate causing of civilian casualties as foreseen but unintended side effects of a bombing or other military assault, its application will depend crucially upon how one understands terms like “civilian” (or “noncombatant,” as I would prefer) and “combatant.” An instructive case of this is President Obama's determination that U.S. drone bombing in parts of Pakistan deemed “strike zones” should treat any young man of military age as a combatant.Footnote 19
These elements recall the history of manipulations, cover-ups, and obfuscations that commonly accompany responses by military and political authorities to serious difficulties or scandals. Revelations are met with a cloud of excuses, and punishments are rare. Such cloud effects underpin the fifty years it took for a Northern Ireland coronial verdict to declare the killings by British troops of nine “entirely innocent” civilians in West Belfast in 1971 as “clearly disproportionate.”Footnote 20 British stalling and deflection of the original impressive testimonies reflects the power of the asymmetry myth.
Sources of the Asymmetry Myth and a Reflection on Moral Injury
Given the prevalence of the asymmetry myth, it is important to reflect on the sources of what amounts to a form of blindness or shortsightedness about some of the damaging moral effects of war on its innocent victims and also on those who inflict the damage, who have been trained to kill on instinct and in obedience.
The myth is sustained by nationalist sentiments and romanticism focused on war making and the valor, heroism, and stature of one's troops. The sentiments and the sense of identity they can nourish are underpinned by certain realities, but also by many illusions. One such illusion is the U.S. belief in “American exceptionalism,” which holds that the United States is a superior nation with a mission to improve the politics of other nations. Events in the United States in the four years of Trump's presidency and continuing beyond have highlighted the flaws in that myth and underlined other less flattering ways in which America is and has been in the past exceptional. In Australia, the connection of war with national pride and identity is commonly celebrated in rhetoric about the supposed “coming of age” of Australia as a nation in the bloody battles of World War I, even though Australia's involvement in the war was dubiously justified. The invasion of Gallipoli, celebrated each year on Anzac Day to commemorate the Australian (and New Zealand) military who served in that and other campaigns, was a bungled idea and a devastating defeat for the Australians. Domestic support for the war was so fragile that the government's declared necessity for conscription was defeated in two referenda.Footnote 21 Nationalism and the romantic militarism associated with it have often inspired brutal imperialist conquests and created fantasies about glory and paternalistic intentions to “civilize” inferior populations.
These sorts of beliefs are deeply entrenched and would be threatened by recognizing that war crimes may be an inevitable feature of military ventures. Political, financial, and emotional investment in a standing military establishment feeds the cultivation of a hyperbolic attachment to a high moral standing of one's own armed forces that cannot see anything wrong in training mostly peaceful civilians to be instinctive professional killers. Dobos's discussion of this problem does not need repeating, but it is instructive that the psychological damage, especially moral injury, discussed by Dobos as experienced by so many soldiers, was long unrecognized or unadmitted. Though the existence of war-related PTSD is now widely acknowledged, recognition of the significance of moral injury has been slower.
Contemporary theorists tend to mean a number of things by “moral injury,” but what I am here referring to is the harm, both psychological and moral, done to soldiers either by their own commission of a war crime or by witnessing one done by a fellow soldier to which they made no protest. Such harms are significant costs of war that the asymmetry myth obscures.
Within the broad category of moral injury, Dobos distinguishes between moral injury proper, which is the debilitating, traumatic effect of a conscientious recognition of one's own guilt, and what he calls “moral degeneration,” which is the response of callous indifference to the acknowledged crime. The two categories are certainly different, but when Dobos argues that the recognition of guilt is a “a sign of good moral character,” he ignores the continuing debilitating effects on moral character of having to live with what one has done, especially if one has made no effort to admit the crime publicly. Dobos argues convincingly that moral degeneration is the result of standard military training, but that traumatic moral injury happens primarily through combat. I agree that the degeneration effect is likely to be primarily the result of training, though the combat context plays a part. However, training can remain a strong causal factor in the moral anguish such agents endure when they reflect on how their training in obedience and solidarity contributed to their commission or toleration of the crime.Footnote 22
Crimes against Peace That Are War Crimes
In addition to the issues raised by war crimes, there is a related question about what are usually referred to as “crimes against peace.” These crimes involve violations of jus ad bellum rather than jus in bello criteria, and they are distinguished from war crimes partly for that reason.Footnote 23 Those who start an unjust war—or persist in a war that was initially just but has degenerated into a morally unjustifiable conflict—are committing a great moral crime. Part of the ensuing guilt may be incurred if they fail to do what they can to prevent their soldiers from committing jus in bello war crimes, ignoring such offenses when they occur, or failing to act appropriately when they learn of the offenses. Beyond this, however, it is arguable that they also bear responsibility for all the killing, maiming, and other destruction inflicted upon the enemy soldiers and enemy civilians, even those civilians who would otherwise have counted as “legitimate” collateral damage. This argument operates on the assumption that the unjust war is waged against an enemy that has, or would have, a just cause in resisting. This is a relatively simplified model because there are unjust wars that are unjust on both sides, such as wars between two colonial powers each bent on conquering a third party's land and subjecting its people to unjust rule or slavery. There are also other complications, such as the one already mentioned, concerning the status of those fighting an initially just war of resistance that turns unjust because it continues beyond reason or in pursuit of indecent aims other than the justified end. Or, more complex still, the status of those whose unjust war develops into a just reactive defense when their opponents deviate from their just cause. But the relatively simple model applies in many cases and could be adjusted for the more complex cases to accommodate the moral point at issue.
This strong claim about unjust war makers has some echoes of claims associated with those just war theorists called “revisionists” who stress that those prosecuting an unjust cause have at least some prima facie moral responsibility for the casualties to the just warriors on the other side. I have discussed the debate between them and the so-called traditionalists elsewhere and suggested room for some compromise between the positions, but I think the strong claim here about unjust war makers is relatively independent of the debate.Footnote 24 The crimes against peace committed by the political authorities who embark upon unjust war go beyond the bare fact that they unjustly destroy the state of peace previously prevailing among nations. The idea should also encompass the individual and collective crimes that consist in the deaths and other serious harms that their war inflicts on their just enemy's soldiers and civilians, beyond war crimes more narrowly understood. For that matter, their moral responsibility arguably should extend to the deaths and injuries of those of their own soldiers and civilians who were not joined in serious culpability for the unjust war they fought, such as soldiers conscripted or otherwise coerced into fighting and civilians excusably deluded by their leaders about the cause for war.
A final consideration about crimes against peace and war crimes concerns nuclear weapons and nuclear deterrence. The possession and expressed intention to use nuclear weapons in some circumstances (the “conditional intention”) is a strong candidate for a crime against peace. I have argued elsewhere that the policy of nuclear deterrence, for all its professed good intentions, is in itself profoundly immoral, but I have no space to elaborate on that here.Footnote 25 The long-term consequences, however, of this supposed protection by deterrence have been an arms race in other weapons, often dubious in their own terms, as well as a drive for other nations to seek added security in nuclear weaponry. The asymmetry myth is again evident in the way nuclear states denounce as “rogue states” other nations that seek deterrence against them by arming themselves with nuclear weapons that threaten war crimes. The accusers cannot afford to recognize their own existing possession and further accumulation of such armaments as similarly “rogue.”
Conclusion
In this essay, I have discussed war crimes in an effort to contribute to the question of how to weigh the moral costs of war and the preparations for it. The widely unacknowledged extent of war crimes committed by “our” side in the past, and likely to continue in the future, is sustained by the asymmetry myth and points to grave defects in a country's preparations for war, including the establishment and training techniques of a standing army. Just how widespread are the war crimes of “the good guys” that every nation considers itself to be among is difficult to establish properly because those that regard themselves as the good guys mostly will not face up to the question. Far too many individuals and institutions have too much invested, in every sense, in a near spotless picture of their war making and its preparations to face the grim prospect that the committing and condoning of such war crimes may well be a pervasive feature of the military defense project.
Whether that situation can be remedied is a crucial question to ask when we consider the moral prospects of preparing for and waging a just war. The Dobos critique of current military training's morally damaging effects on combat behavior, plus the understandably conformist effects of group bonding and loyalty to comrades, combines with the asymmetry myth to paint a negative picture of remediation.
One promising sign, however, should be mentioned. These days, when evidence of “our” war crimes emerges in public view, it often does so through the testimony of military comrades of the alleged perpetrators, as in the recent Australian scandal described earlier. This suggests that the effects of military training plus the associated pressures of combat itself need not be as overwhelming as they may seem in nullifying the moral aversion to committing or acknowledging war crimes.
Dobos, in a trenchant discussion of the powerful effect of military obedience training, cites the Milgram experiments of the 1960s, which purported to show alarming tendencies in ordinary people to inflict severe harms in obedience to authority.Footnote 26 Yet an important caveat to the Milgram story not discussed by Dobos is that there were many subjects who refused to inflict the supposed severe electric shocks to the “victims,” who were (unknown to the subjects) actors. The refusal rate varied with the type of exposure the subject had to the victim. In cases where the subject and victim were in separate rooms and had no visual or voice contact, the refusal rate was 35 percent. However, the rate rose higher as contact was increased, reaching 70 percent when the subjects could see and hear the victim's protests and screams up close and were asked to force the victims to keep their hands on the supposed electric shock plate.Footnote 27 These subjects may or may not have previously undergone military training, but the resisters indicate that even such training need not extinguish a capacity for conscientious resistance. It may even offer some hope that the baleful effects of the asymmetry myth can with difficulty be dispelled or at least mitigated.
