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ABSTRACT This paper critically examines Michael Walzer’s famous efforts to integrate a
‘supreme emergency’ exemption into the ordinary restraints of jus in bello. The author argues
that, while Walzer raises valid points about the felt responsibilities of leaders of political
communities under extreme pressure, it is a mistake philosophically and prudentially to think of
supreme emergency as granting moral permission to violate the jus in bello rules. Instead, the
author argues, any violations of ordinary restraints should remain violations. However, by analogy,
with exoneration from penalty for violations of criminal law in extreme circumstances, one might
imagine political leaders’ decisions to violate just war restraints to be (in very rare and extreme
circumstances) forgivable but not permissible in advance.
KEY WORDS: Michael Walzer, Just and Unjust Wars, Supreme Emergency, Just War Theory
The views expressed in this paper are solely those of the author. They do not necessarily reflect the policy
or position of the government of the United States, the United States Air Force, or the United States Air
Force Academy.
Correspondence Address: Martin L. Cook, Department of Philosophy, United States Air Force Academy,
2354 Fairchild Dr., USAFA, CO 80840, USA. E-mail: martin.cook@usafa.af.mil
I only cite this at such length to make the point that the vast majority of
Mexican Americans in my region of the US are accurately characterized by
this account and, although the case is more complex, so are Native
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morally tragic circumstances where all choices available are morally bad. But
it goes farther in acknowledging that there are still shades of gray in tragedy.
The actor choosing in such limit cases, however, must do so in the full
recognition that there is no moral (or legal) permission for the choice.
Although Orend doesn’t make this point, it appears the best the actor can
hope for is the somewhat grudging recognition by the world community and
history of the excusable, rather than the permissible, nature of the choice.
Orend distinguishes his way of thinking from Walzer’s in two fundamental
ways. First, it treats the circumstance of choice in supreme emergency as a
full-blown tragedy rather than as a grudging moral permission. As he writes:
‘Not everything in war can be morally justified in supreme emergency we
hit a wall where we see that, morally, we run out of permissible options’
(Orend 2006: 155). Second, Orend’s analysis eliminates the maddeningly
paradoxical shape of Walzer’s treatment. In emergency conditions, you do
wrong, pure and simple understandable wrong, but wrong nonetheless.
Consistent with his effort to make sure that just war is substantial enough
to guide real-world decisions, Orend concludes his discussion with some
criteria to guide even decisions in hell. Quickly summarized, they are that
the action contemplated must at least be reasonably believed to work, that
one should publicly declare what one is going to do (alerting the adversary to
perhaps rethink his actions), appeal to the international community for
outside support so that the most extreme measure might be unnecessary, and
lastly try to maintain right intention to use the measures contemplated only
for the purpose and to the extent necessary.
Overall, of course, close attention to reasonable hope of success is
paramount. The temptation to strike out blindly and in panic will inevitably
arise strongly in extreme circumstances. But even in hell, hard questions
should be asked. Will killing innocent civilians really be likely to achieve the
desired effects? The history of strategic bombing, at least, suggests it’s rarely
likely to be effective. How will the adversary respond to our extreme
measures, beyond the pale of jus in bello? Will it end the emergency or slide
toward even more extreme measures on both sides?
I follow Orend’s analysis here so closely, of course, because it seems right to
me. The risks of following Walzer’s strategy and trying to shape a moral
permission for supreme emergency measures are simply too great. If just war
is meant to provide both meaningful guidance and meaningful restraint, such
permission will inevitably be employed by leaders to justify acts just war
theorists should not be willing to bless.
In making this remark, I don’t wish to be misunderstood. I’m not merely
noting that leaders will lie and twist whatever conceptual tools we give them
to cover the inexcusable. Rather, I’m suggesting that putting this tool of a just
war permission for supreme emergency calculation into the hands of such
leaders will enable even the most sincere and properly motivated leader to
reach for it too quickly and too easily.
Letting supreme emergency rest as genuine moral tragedy, as Orend argues,
is better it seems to me both conceptually (in avoiding paradoxical
formulations) and psychologically. If leaders are going to cross the line, let
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them do it in full cognizance of the moral valence of the line they are crossing.
If they are sincere and their claims of tragic necessity stand up to scrutiny,
their acts may stand in analogy to those rare cases in civil law where criminals
are exonerated despite the clear recognition that their acts violated the law
(for example, in ‘mercy killings’ of the terminally by distraught relatives,
urged to the act by the deceased). It is not necessary to rewrite law to
exculpate the very rare criminal act which occurs in circumstances so unusual
that punishment is not carried out.
But let the threat of punishment remain: it serves to force the actor to act
in full recognition of the legal risks he or she runs in acting. Similarly, at
the international level, let the threat of war crimes prosecution hang over
anyone who crosses the jus in bello line even if, in the retrospective
judgment of the international community (or the International Criminal
Court, perhaps), those actions under those extreme circumstances are
sufficiently comprehensible that they may be allowed to pass as acts not
justifiable, but subject to exoneration. But on this analysis, one must guard
against ‘victor’s justice,’ in which the side which invokes supreme emer-
gency and wins is immune from disinterested review of their choices, while if
it loses, it is subject to condemnation for exactly the same acts. Rather, there
must be some mechanism for retrospective review regardless of outcome
which might, in time, limn out the shape of customary international law in
this area.
urge to create a supreme emergency exception within the structure of just war
doctrine itself.
The nature of the threat in question to this community must be clearly
defined, Walzer argues: ‘When our community is threatened, not just in its
present territorial extension or governmental structure or prestige or honor,
but in what we might think of as its ongoingness, then we face a loss that is
greater than any we can imagine, except for the destruction of humanity
itself’ (Walzer 2004: 43, emphasis original). What is threatened is ‘. . . moral as
well as physical extinction, the end of a way of life as well as of a set of
particular lives, the disappearance of people like us’ (Walzer 2004: 43,
emphasis added).1
The cursory review of history offered above must give us pause when
we attempt to universalize this maxim. Walzer seems to be arguing that any
time any community faces the loss of its way of life, it is faced with a supreme
emergency, and therefore is entitled to disregard the war convention and,
interestingly, not only when that disregard is clearly likely to be effective,
but even when it merely serves to ‘reduce the risk.’ Given the historical reality
that most human communities that have ever existed have at some point
disappeared, often as a result of conquest, invasion, or loss of political
autonomy, such a generalized permission would be a recipe for rather
frequent supreme emergencies.
In one’s imagination, one need only supply the Navajo with nuclear
weapons, the Mexicans of the Southwest United States with biological
munitions, or the Lakota with indiscriminate chemical warheads to grasp the
permissions being offered in this formulation. The truth is, of course, that
communities lose identity and autonomy continually in the Darwinian
evolution of political communities and, as Walzer himself argued eloquently
in his assessment of the moral claims of communities, ‘. . . since these
processes are continuous, international society has no natural shape’ (Walzer
1977: 61).
There clearly is a tension, therefore, in Walzer’s analysis of these
phenomena. On the one hand, he (correctly, in my view) wants to stress the
fluidity of communities through time. He recognizes that the loss of
community is almost always perceived as utter disaster for the community
in question and indeed, often is a great loss even viewed in hindsight. But he
also recognizes that, like tectonic shifts in an earthquake, the new landscape
settles down and, especially if benign government follows the disruption, new
communities of moral meaning form in their wake.
On the other hand, his strong claims about the near-cosmic value of the
loss of a particular community suggests a desire to freeze the status of
communities at a given point in their evolution and to give their leaders wide
permissions to use any means at their disposal, even immoral ones, to
maintain that frozen structure.
Once again, I think we can certainly agree with the psychological point
that leaders of a community threatened with such loss will feel the weight of
their responsibilities, not to be responsible for the permanent loss of their
community’s future ‘on their watch.’ Furthermore, we can recognize that the
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adversary may be at the moment, in the end there are common moral values
to which we can appeal.
But what if Kantian convictions are mistaken? What if there is never going
to be any moral meeting-ground between humans and the attackers? What if
it is truly a struggle to the death in which only one species, one civilization,
can survive? What if the conflict is not driven by the fear to be expected by
the encounter with the unknown and the alien, which will pass as
communication and cross-species understanding develops? What if the ethical
gulf between the species is truly unbridgeable, and the gulfs of cross-species
misunderstanding and conflict permanently unbridgeable?
In such a scenario, I’m inclined to think the kinds of supreme emergency
permissions Walzer envisages do, in fact, obtain. While human communities
come and go by a wide range of means, often tragic, the fact that humanity
itself persists can counsel a certain tortured equanimity in the face of that
inevitable evolution. But the loss of humanity itself would remove that
somewhat cold comfort, leaving no comfort at all. In that situation, perhaps,
supreme emergency truly obtains, and any means likely to reduce the risk is
justified.
If that’s right (and, again, I’m by no means sure it is!), it sets the limit case
of normative permission from which we can walk back with historically
informed and realist eyes to ask whether the loss of any human community
among others approximates it sufficiently to gain this permission. The reader
will already have discerned that I doubt it.
In the end, I believe, the wisest counsel remains Augustine’s. On the one
hand, the loss of Rome would be a tragedy of enormous proportions, and
only a fool could fail to see the need to defend it with all one’s might. If Rome
falls, so does the ‘tranquility of order’ it has provided, and which it will take
centuries to rebuild. On the other hand, even the loss of Rome is not the loss
of the Kingdom of God. For Augustine, this reassurance is grounded in a
religious assurance of providence. But I don’t think it has to be. A sober
review of human history shows that tyrants don’t rule forever (indeed, usually
not for very long). Even in the darkest of ages, it may be important for the
future that we preserved our humanity through them rather than discarding
principle in the felt exigencies of the moment.
Note
1
An excellent critique of the status afforded political community in Walzer’s thought is provided in Toner
(2005: 556 557).
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Biography
Martin L. Cook is Professor of Philosophy and Deputy Department
Head, Department of Philosophy, United States Air Force Academy in
Colorado Springs. He authored the 2003 book, The Moral Warrior, and
serves on the editorial boards of The Journal of Military Ethics and
Parameters, the Scholarly Journal of the United States Army War College.