Jus in bello,
and Its Place in
the Pursuit of Victory
by MAJ Jansen Wee
It is an all-too-common assumption that
restraints and controls in war are anathema to war's very
nature. The Prussian war philosopher, Carl von Clausewitz
himself, while acknowledging the existence of international
law in war as a restriction, dismissed it as absurd to introduce
the concept of moderation to "the philosophy of war".1
Being an instrument of politics, the object of war is to
attain military success on the battlefield in order to compel
an adversary to accede to one's bidding. Victory would,
therefore, comprise the ends, and in a theoretical 'absolute
war' worldview espoused by Clausewitz, it follows that the
means to achieve it should not be impeded in any way. It
should be noted, however, that in reality, war has never
reached its absolute form (although it has come frighteningly
close on several occasions in modern history). While factors
which Clausewitz collectively termed "friction"
may have played their part, ample evidence throughout the
history of warfare has demonstrated that the majority of
belligerents were capable of exercising some measure of
restraint, adhering to the tenets of jus in bello,
the just conduct of war. Conversely, there have been instances
whereby rules of war have been violated in the interest
of victory, seemingly embracing a Machiavellian approach
of ends justifying the means. All too often, violations
occur as a result of incompatibility in perceptions and
values, of what is permissible in war and what is not, especially
where differing cultures, political systems and civilisations
are involved.
In order to evaluate the place of moderation
in war, especially in the quest to attain victory, it is
first necessary to frame the analysis within the context
of how victory is defined. With the passing of the era of
limited wars of the 18th century, aptly manifested
by Frederick the Great and the Seven Years War, victory
has since been redefined. Prior to the Napoleonic Age, wars
were fought largely between ruling dynastic houses of Europe,
and primarily for limited gain and objectives. Ordinary
people were largely uninvolved, and conflicts were the prerogative
of the ruling class. Victory then meant the acquisition
of some border territory, possibly a modest addition to
the treasury, the attainment of war 'trophies', and mostly
an increase in prestige. Interestingly, defeat was not too
terrible, merely entailing loss of land, gold or honour,
but hardly threatened the survival of a state the
sole exception being the kingdom of Poland in the 1790s.2
The advent of the French Revolution, with
its notion of national citizenship and patriotism, and by
logical extension of that concept, the levée en
masse, transformed the face of warfare.3
The consequent expansion in the scale of resources allocated
to war enabled governments to raise large armies, properly
armed and equipped. No longer were wars strictly the domain
of monarchs, but actively involved the people, who had previously
been impassive subjects and not concerned citizens. Under
this new political system, soldiers were inexpensive and
became fairly easy to replace. Napoleon was quick to recognise
this potential of mass on the battlefield, and exploited
it accordingly. Mass restored the advantage to the offensive,
and made rapid decisions possible. Ironically, mass armies
still reliant upon the old system of supply by foraging
also made rapid decisions critical, as failure to do so
would mean frequent dispersion of armies for lack of subsistence.
Hence the need to achieve a quick victory, prompting Napoleon
to introduce battles of annihilation through a direct approach
at the operational and tactical level.4 Commanding
generals during the Napoleonic wars thus eagerly sought
battle, in contrast to evading them in 18th century
warfare. Although eventually defeated at Waterloo in 1815
(when his opponents copied his methods), Napoleon had already
left an indelible legacy on how warfare could be fought
to attain decisive results. In Clausewitz's interpretation
of Napoleon's methods, warfare could prove to be an extremely
powerful and useful instrument of politics.5
In the post-Napoleonic period, as warfare
between nations gradually edged towards total war, so would
nations seeking victory mobilise, theoretically, all its
resources for the conflict. The ascent of nationalistic
fervour in Europe, coupled with technological impetus brought
forth by the Industrial Revolution, resulted in an expansion
of the geographical confines of war, which gradually encroached
upon the home front. As various belligerents realised, one
by one, the potential that available nation-wide resources
could contribute to their war efforts, it became apparent
that swiftness in achieving victory on the battlefield over
one's enemies would likely be replaced by prolonged wars
of attrition the attrition of the state's resources.
This observation promptly drove potential great power rivals
to seek out new ways to achieve quick and decisive solutions
to ensure that victories over their enemy would not simply
be 'pyrrhic' in outcome. Quick solutions, however, often
required the maximising of efforts and the dispensation
of moderation, and the means used were sometimes questionable.
The fateful intertwining of the Industrial Revolution with
the post-Napoleonic era also introduced technological innovations
to weaponry, tactics and strategy, many a time creating
an illusory impression on military planners that rapid decisive
victory à la Napoleon could somehow be revived.
Hence, the Clausewitzian definition of victory was unchanged
and remained the core objective of every self-respecting
army preparing for war.6
In addressing the attainment of victory,
the doctrine of military necessity, known in German as kriegsraison,
will be discussed. Also referred to as the Utility principle
in jus in bello terms, it prohibits the inflicting
of superfluous harm, which it defined as "harm that
does not serve to bring about military benefit".7
Military necessity has frequently been employed to justify
actions and policies that seem legally and morally objectionable.
At times, the excuse is stretched to such an extent that
even acts not really required to achieve victory are justified
in the name of military necessity. While the Law of War
recognises the legitimacy of military necessity in attempting
to determine excesses, it strongly refutes the assertion
that whatever brings about victory is permissible.8
From a legal standpoint, "military necessity"
does not contravene the Law of Armed Conflict, but neither
is it above that law. The actions commanders initiate must
be justified by the military requirement to undertake the
desired course of action, and still remain legal. The Law
of Armed Conflict, however, recognises the impracticality
of full compliance with legal norms in certain circumstances.
Nevertheless, the doctrine of "military necessity"
is limited to particular events and circumstances, and does
not have a "general suspensory effect upon the Law
of Armed Conflict." 9
A pertinent historical example of military
necessity can be illustrated by the use of submarines in
both World Wars. Prior to their debut in the First World
War, laws of maritime warfare required the attacking ship
to promptly rescue the survivors of the sunk vessel.10
However, the Kaiser's U-boat commanders "openly refused"
to rescue survivors during the Great War, "pleading
military necessity". The limitations of the submarine's
size and the compromise to its principal function of stealth
prevented it from rescuing and taking onboard survivors
in the interest of self-preservation. Similarly, Admiral
Doenitz's "Laconia order" in 1942 emulated
the 'sink on sight' policy promulgated by the German government
in the First World War. Doenitz's defence at Nuremberg was
that in the era of aircraft and radar, the submarine's battle
was never really over until it returned to port safely.11
In the end-state, the preservation of the number of U-boats
as a strategic weapon was critical in Germany's quest to
achieve victory over the British.
While the old rules of maritime warfare
were reaffirmed at Nuremberg, all charges against Admiral
Doenitz on this count were dismissed, following the testimony
of US Admiral Nimitz that the US Navy had a similar policy
in the Pacific.12 It is plausible that the submarine's
utility and potency as a strategic weapon to bring about
victory in the tradition of the French Jeune École,
especially for weaker navies, may have been a key influence
in the decision not to convict Doenitz.13 The
absence of consensus to impose serious legal measures against
this deviation from the norm only served to demonstrate
the strength of the military necessity argument in war.
The fact that these laws were written at a time when submarine
technology was not even conceived provides a possible clue
to the reluctance to pass clear judgement on the issue.
On the other hand, the Battle of Algiers
in 1957 during the Algerian War of Independence provides
an alternate perspective of the utility principle. It becomes
invariably more difficult to establish distinct boundaries
to plead military necessity in a counter-insurgency setting.
French soldiers, fresh from defeat at Dien Bien Phu, were
bent upon preventing a similar politico-military disaster
in Algeria (which was considered a department of Metropolitan
France). The guerre revolution-naire, espoused by
the "hard school of Indochina", practically licensed
any method to attain victory, including the use of assassination,
deportment, psychological "re-education" and torture.14
While the elite French 10th Para Division did
manage to achieve some success in the city, their methods
were deplored and shunned internationally as well as by
the general French public. Claims of military necessity
in this instance would indeed be difficult to justify. Yet,
in analysing this case study, we should note that many of
those who carried out their gruesome tasks were, to a large
extent, convinced that it was necessary viewing the
fight against the Algerian FLN (Front de Libération
Nationale) as essentially a battle between good and
evil.15
Less the complicity of low-intensity conflicts,
the utility principle is comparatively easier to ascertain
than the principle of proportionality. Proportionality required
that any harm caused by military action should be proportionate
to the military gain. This pre-supposes the attachment of
some value to judgements, which would surely be subjected
to differing interpretations by different individuals. Some
have chosen to interpret proportion strictly in terms of
quantifiable values, which can be highly unrealistic. The
Coalition's strafing and bombing of Iraqi retreating columns
along the "Highway of Death" at Mutla Ridge during
the Gulf War have been criticised by some as mindless carnage,
and as being unnecessary in view of the latter's already
defeated state. Adam Roberts asked,
"How long is it right to go on
bombing an adversary's forces (even if they are illegally
occupying and seeking to annex another state without justification)
before engaging them in direct combat, which at least gives
them a reasonable chance either to fight or surrender?"16
Yet, at the point of attack the Iraqi forces
remained armed, and had received prior warning from the
Coalition that they would be attacked if they did not leave
their vehicles.17 The proportionality principle
did not require that the damage done be proportional to
the military benefit. It also does not expect that any actions
against targets be proportional to the strength of defence
or its military value. To demand such a requirement would,
in Sheldon Cohen's words, "establish a very inexact
criterion and would raise questions about the legality of
countless bombardments".18 Despite the moral
inadequacy, it is perhaps the best compromise out of a complicated
situation.
Another element of jus in bello
which will be discussed in relation to the attainment of
victory, is that of civilians and their supposed non-combatant
immunity status during war. The Clausewitzian concept of
victory complicated the status of non-combatant civilians,
but the situation became infinitely worse off with the arrival
of the aircraft. While there had been specific rules of
war regarding the bombarding of population centres by armies
and fleets, there had been no rules governing aerial bombing.
As mentioned earlier, the Nation in Arms idea had expanded
the boundaries of where conflict could take place. Civilians
who had hitherto been uninvolved, were now part of a nation's
efforts in sustaining its armies, fleets, and later air
groups. The harnessing of industrialisation to mass-manufacture
weapons and equipment for one's armed forces also meant
that civilians were increasingly contributing to the war
effort. Thus, in attempting to defeat one's enemy quickly,
and with no quick solution available on the battlefront,
belligerents resorted to targeting the war industries in
the home front. This concept probably drew its origins from
naval warfare in the Age of Sail, whereby ships were allowed
to bombard the ports, docks and other facilities supporting
the enemy fleet or army, regardless of whether these areas
were defended or not. Now, with the added dimension brought
about by aircraft for military purposes, targets were no
longer limited to those on the battlefront. In fact, advocates
of air power even argued that civilians working in plants
producing weapons and ammunition were considered legitimate
targets as they contributed directly to the war effort.
Much of the strategic bombing that occurred in the Second
World War on urban centres were very much the result of
evading enemy defences rather than a purposeful object of
the bombing campaign. Night bombing and high-altitude daylight
bombing could not help but result in inaccurate bombardment.
Consequently, area bombing was chosen as the method to cope
with the problem which would otherwise result in the unacceptable
attrition of one's own bomber forces.
Air Marshal Sir Arthur Harris, moreover,
was quite convinced that "terrorising" the enemy
population would assist in the capitulation of the enemy
political leadership, and much of RAF Bomber Command's operations
were directed in this area.19 It was the only
way to hit back at the Germans in the early days of WWII;
to possibly reduce the chance of the enemy's victory; and
enhance one's survival for the eventual achievement of victory.
Acknowledging the divergent views on approaching the problem,
Cohen correctly pointed out that the issue is more intricate
than simply stating whether the Allied bombing actions were
morally or legally permissible. Definition of what constituted
"contribution to the war effort" alone proved
complex as there was no definite way of drawing a line on
the roles played by different civilians. 'Source of danger'
might provide a useful gauge as to whether civilians would
loose their immunity status, but in a long-drawn war, with
the use of strategic weapons backed by defence industries,
civilians working in ammo or weapons factory would pose
a medium to long-term threat by contributing to the enemy's
war effort.20 Food processing and pharmaceutical
plants, which provide for the needs of those serving at
the battlefront, also supply the needs of civilians at home.
This ambivalence has only opened this caveat to mixed inter-pretations,
further complicating the issue.
A form of warfare, which had involved civilians
even before the advent of Industrialisation and the democratic
revolu-tions, is the siege. Strangely, the rules of war
permitted a besieging army to practically surround a fortified
town or castle, in effect starving the population and the
defenders, into sub-mission, averting the high cost of taking
the castle by storm. This practice has not been altered
radically even in modern warfare. A broader extension of
this concept can be seen in the use of naval instruments
to further the objectives of economic warfare, essentially
the starving of whole nations through the employment of
blockades, and unrestricted submarine warfare. Limited in
its effects on continental powers with contiguous land borders,
its potential impact on states reliant on maritime trade
is critical. The very fact that both siege warfare as well
as naval economic warfare remain accepted practices, while
legislators debate over complexities of the rules of double
effect, appears to be a senseless contradiction of the Laws
of War.21 Sieges and blockades are in effect
indiscriminate weapons that do not "take aim"
at military targets but instead treat all within their zone
of impact as a common target. The military or political
commander of the besieged forces would be placed in a position
to consider the plight of both the troops as well as the
non-combatants in the 'enclosure', vis-à-vis his
limited subsistence resources. In waging this type of warfare,
civilian non-combatants would inevitably have to bear the
brunt of its effects. The intent, therefore, is to bring
its adversary to surrender via pressure from the population
on the government. In such an instance, it is fairly obvious
that the civilian population is being targeted directly
and wilfully. It is indeed ironic that while laws of war
prohibit weapons and/or methods that inflict "unnecessary
suffering" on combatants, they fail to address the
needless suffering inflicted upon civilians.
We see a similar parallel in the targeting
of civilian infrastructure in both the Gulf War as well
as in the NATO air strikes over Kosovo. Increasingly, differentiation
of targets which are strictly military or civilian is almost
impossible these days, prompting US and NATO forces to focus
on "total infrastructural war" in order to immobilise
the enemy's military machine, or otherwise induce a reaction
from the civilian population against the regime. In either
case, food shortages, and contamination of water as a result
of power failure only bring about civilian suffering.22
Thus, the attacks here would neither be totally legal or
moral. Rainer Spencer correctly points out that even in
a situation where infrastructure is difficult to segregate,
we should be capable of "rank-ordering" them to
take out the less desirable targets that could cause collateral
damages.23
In contrast, Saddam Hussein's deliberate
launching of SCUD missiles against Israeli civilian population
during the Gulf War was an open attack designed to achieve
a political outcome, in this case, to fragment the Coalition.
Saddam's intent to break up the Coalition would, for certain,
have been factored into his overall calculation for victory,
but his chosen method simply ran against the grain of what
is permissible in the conduct of war. Furthermore, the characteristic
inaccuracy of the SCUD only implied that their effective
employment could be optimised against populated urban centres,
violating the fundamental principles of the laws of war
on yet another count.24
Yet the prohibited use of selected weapon
types in war, while they exist, seems rather patchy. Chemical
and biological munitions, dum-dum bullets, incendiary weapons,
mines and bobby-traps are considered illegal as they violate
the principle of unnecessary suffering. The noticeable absence
of nuclear weapons from the list is conspicuous, to say
the least. Under the unnecessary suffering principle, the
question usually posed is whether "other weapons or
methods" could be employed to attain the same military
results with reduced suffering of injury.25 Conceivably,
there is no 'alternate weapon system' which can achieve
the same military effect as that of nuclear warheads, which
is perceived to ultimately deliver victory swiftly, but
also cause widespread and long-term suffering from radiation
for those dubiously fortunate to have survived an attack.
Perhaps the alternative to nuclear weapons are, perversely,
the warheads themselves, or more accurately, their deterrent
effect; for to deter war might conceivably be regarded as
a victory, albeit more to the tune of Sun Tzu.
Another concern of the exercise of restraint
in war is the relation between jus in bello and jus
ad bellum. Although philosophically distinct, some have
used the justification of waging a just war to excuse their
morally/legally ambiguous actions during war. During the
American Civil War, the Union's General William Sherman's
bombardment of Atlanta, forced evacuation of its inhabitants,
burning of the city, and subsequent march through Georgia
to the sea are some of the notorious actions carried out
to bring the Confederacy to its knees. However, Sherman
claimed that he "had no hand in making this war",
only fighting it. He argued that the only option open to
him to end the war was through military action, but Southern
leaders could end it quickly by yielding. This shifting
of blame for his ruthless conduct certainly does not absolve
the perpetrator of his crime. However, victors are seldom
made to answer for their crimes, which again lends emphasis
to achievement of victory taking precedence over moral restraints.
Nevertheless, Sherman's march to the sea took place within
the context of a civil war. Under such conditions, whereby
crucial issues of national unity are grave concerns, with
possible long-term socio-political implications, victory
became an imperative, which had to be achieved as both sides
believe that it was conducting a just war. Walzer's statement
aptly sums up this point, "those who resist aggression
are forced to imitate, and perhaps to exceed the brutality
of the aggressor."26
The above arguments and historical illustrations
have only served to demonstrate that the implementation
of restraints and laws in war remain a complicated problem.
At a particular time and place, and under unique conditions
and circumstances that often surround war, decisions are
made to initiate actions in attempts to achieve victory.
Legal aspects, if determinate and implementable, would be
effected. Moral issues, on the other hand, are far more
difficult to quantify, and it is preferable for such issues
to be dealt with broadly in terms of principles and concepts
rather than empirical methods. The chief concern is not
that new laws are needed, but of ensuring that the existing
laws of war are adequately understood, widely upheld, "sensibly
interpreted, and effectively implemented".27
Fortunately for humanity, military necessity has historically
been revisited alongside the rules of ethics and prudence.
The ethical rule required that "one does not cease
to be a moral being when one takes up arms". That of
prudence required that one's behaviour (during conflict)
towards an adversary should not be in such a manner as to
make any "subsequent reconciliation impossible".28
In the final analysis, therefore, victory and restraints
in war will remain a constant tension, but we can rest somewhat
assured that in conventional conflict, at least, societies
still retain sufficient humanity to refrain from totally
uninhibited war, even as they seek victory.
Endnotes
1 Carl von Clausewitz,
On War, ed. Anatol Rapoport, (London: Penguin Books,
1982), pp. 101-102.
2 Brian Bond, The Pursuit
of Victory from Napoleon to Saddam Hussein (Oxford:
Oxford University Press, 1996) p.2
3 Michael Howard, War
in European History (Oxford: Oxford University Press,
1993), p. 80.
4 Gunther Rothenberg,
The Napoleonic Wars (London: Cassell, 1999), p.210.
5 Clausewitz, op.cit.,
p.119.
6 Bond, Op.Cit., pp. 52-53.
7 Sheldon Cohen, Arms
and Judgement: Law and Morality, and the Conduct of War
in the Twentieth Century (Boulder: Westview Press, 1989),
p.40.
8 Ibid., p.35.
9 A.P.V. Rogers, Law
on the Battlefield (Manchester: Manchester University
Press, 1996), p.6.
10 Bryan Ranft, 'Restraints
on War at Sea before 1945' in Restraints on War: Studies
in the Limitation of Armed Conflict, ed. by Michael
Howard, (Oxford: Oxford University Press, 1979) pp.52-53.
11 Walzer, Op. Cit., pp.
147-149.
12 Ibid., p.150.
13 Ranft, Op.Cit., p.51.
This school of naval warfare, borne of "extreme Anglophobia",
advocated a theory of maritime warfare which ignored every
restriction on naval actions against merchant shipping.
14 Anthony Clayton, The
Wars of French Decolonization (London: Longman Group,
1998), pp.129-30.
15 Ibid., p.130.
16 Adam Roberts, 'The
Laws of War', in International Perspectives on the Gulf
Conflict, ed. by Alex Danchev and Dan Keohane, (London:
Macmillan, 1994), p. 284.
17 Ibid., p.284.
18 Cohen, Op.Cit., p.40.
19 Williamson Murray,
'Did Strategic Bombing Work?', MHQ: The Quarterly Journal
of Military History, Vol. 8, No.3 (Spring 1996), pp.
30-31.
20 Cohen, Op.Cit., p.26.
21 It is fortunate that
rules distinguishing conditional and absolute contraband
exist to put a more human face to the conduct of naval blockades.
See George P. Politakis, Modern Aspects of the Laws of
Naval Warfare and Maritime Neutrality, (London: Kegan
Paul International, 1998), pp.413-417.
22 Christopher Greenwood,
Command and the Laws of Armed Conflict, Strategic
Combat Studies Institute Occasional Paper No.4, (Camberley:
SCSI 1993), p.20.
23 Rainer H. Spencer,
'A Just War Primer', Military Review, Vol. LXXIII,
No.2 (Feb 1993), pp. 20-25.
24 Adam Roberts, 'The
Laws of War', in International Perspectives on the Gulf
Conflict, ed. by Alex Danchev and Dan Keohane, (London:
Macmillan, 1994), p. 275.
25 Greenwood, Op.Cit.,
p.24.
26 Walzer, Op.Cit., p.32.
27 Roberts, Op.Cit., p.289.
28 Michael Howard, Temperamenta
Belli: Can War be Controlled?, in Restraints on War,
ed. by Michael Howard, (Oxford: Oxford University Press,
1979), pp. 13-14.
MAJ Jansen Wee is currently a staff officer
in MINDEF. He has previously served as a CO and on S2 with
the Singapore Combat Engineers. MAJ Wee graduated with a
BA (2nd Upper Hons) from NUS. He attended the US Advanced
Intelligence Officer Course and is graduand of the 32nd
CSC, SCSC.
