Abstract
The debate surrounding the justification of deaths of innocent people caused by warring soldiers during war is a complicated issue to deal with. For fear of being attacked by disguised enemies, soldiers have ended up killing innocent civilians including older men, women, and children. While some people have argued that this may be acceptable, others think otherwise.
To a large extent, this is linked to the belief that human beings are mostly reasonable. Generally, killing of civilians during war time is regarded as a serious offence that should be dealt with carefully if the innocent have to receive protection.
On the other hand, however, it is possible for warring soldiers to find themselves in difficult situations requiring them to act fast to protect themselves from attackers unknown to them. This is especially true whenever a soldier is fighting on the enemy’s soil.
While it is ordinarily believed that most civilians especially women and children are the innocent ones, there are instances where they have been used by soldiers to ferry dangerous weapons to be used against the opponents.
This has led to situations where a soldier ignores the fact a civilian may be innocent and goes ahead to kill in self defense. This is based on the fact that it may be difficult to determine the innocence of the civilian. To be on the safe side, soldiers generally regard every person as a potential threat.
Introduction
The appeal to what would cause outrage in the general sentiments of humanity is a common way to think about the elements of normal moral perception of which each person is thought to be capable. Certain things are thought to be so heinous that any person would be outraged when perceiving them. The killing of civilians during war time is one of the commonly cited examples of this kind of monstrous act (May, 2005).
But consider, for a moment, the conditions of war fare when one is acting in enemy territory. In some war time situations, every person, soldier or civilian, is a potential threat. If the civilians seem to be unarmed, and the soldiers are armed, then the idea of the civilians as potential threats is only partially blunted, because the soldiers often do not know which civilians are members of the enemy forces.
Arguments for and Against Killing the Innocent in War
It is clearly an outrage against the sentiments of humanity for soldiers to kill civilian men, women, and children? Initially, it seems that the answer would be clearly yes, as was held by the American military tribunal that convicted Lieutenant Calley. The shooting of seemingly unarmed civilians, especially children, at point blank range, appeared to be morally outrageous.
Virtually, all societies have had strong moral prohibitions against the taking of innocent life (McMahan, 2009). The standard morally acceptable bases for justified killings, whether in self defense or in defense of others, can not be seen to justify killing those who do not have the capacity to harm or kill a well armed, typically male, adult soldier. Ordinarily, soldiers are trained to kill.
When soldiers follow their training, and kill, it is not as much of an outrage as it would be for a non soldier to engage in such killing. But when a soldier or non soldier kills an innocent person, especially a child, this is considered to be enough of an outrage to our civilized instincts to think that it should be heavily sanctioned so as to prevent future acts of this sort at almost any cost (Buhk, 2012).
In My Lai massacre, it is uncontested that Lieutenant Calley and his men killed more than 100 unarmed civilian men, women, and children. However, as one reads through the various court opinions in the case, there is quite a lot of disagreement of how best to characterize these killings.
As pointed out earlier, the military tribunal found Calley guilty of war crimes, and the Court of Military Review upheld the conviction. But the first civilian court to consider the case took a very different position. Here is how the U.S. District Court characterized some of the facts:
The petitioner was 25 years of age and had been an enlisted man for approximately 14 years. The petitioner’s first assignment in Vietnam was at Doc Pho. This was the first indoctrination about the character of the potential enemy. He was told that women were as dangerous as men, and that children were even more dangerous because they were unsuspected.
He was also informed that women were frequently better shots than the men and that the children were used to plant mines and booby traps. During Calley’s earlier limited missions, the unit was continually subject to fire from unknown and unseen individuals.
A number of men in the company had been killed or wounded and prior to the operation at My Lai, they had never seen the persons responsible for the death or injuries of their buddies. Consequently, the formed the opinion that civilians were in part responsible.
When Calley was supposedly to go to My Lai and kill everyone there, his background assumption seems to have been that all the people in the village, including men, women, and children, were enemies and potential threats.
The U.S. District Court, therefore, granted Calley’s petition for habeas corpus relief in part because of how it understood the facts. On the other hand, the U.S. Court of Appeals for the Fifth Circuit reversed the U.S.
District, also at least in part because of its very different construal of the factual record. In reversing the U.S. District Court, the Circuit Court of Appeals seemed to see the My Lai incident as nothing other than a slaughter of unarmed, unresisting old men, women, and children.
What complicated the picture in My Lai was that the distinction between civilian and combatant had become blurred, with even fairly small children being used to transport weapons.
So while there may be strong sentiments against the killing of civilians, especially children, there was a possible defense in the case of My Lai that might have been an exception to the moral judgment about what was normally acceptable or appropriate behavior.
For there was reason, according to the US District Court, to believe that some civilians, and even some children, could be trying to inflict injury or death on the American soldiers in this Vietnamese hamlet.
At Calley’s military trial, and also in the US Circuit Court of Appeals, such reasons were indeed considered and rejected, after much discussion and debate. However, the US District Court seemed to believe that some of the civilians who were killed might have been thought to be threats to the soldiers in Lieutenant Calley’s unit.
In retrospect, it seems that the District Court opinion was seriously flawed. For even if Calley had feared that the civilians in the My Lai hamlet might be enemy soldiers in disguise, they gave no indication that they were armed or that they were posing an immediate threat to Calley and his men.
According to McMahan (2009), the moralized notion of a combatant as anyone who poses a threat in war is different from the legal notion. In law, combatant status is accorded to persons who satisfy certain criteria, such as disguising themselves visibly at a distance by some conventional sign, carrying their arms openly, subordinating themselves to a hierarchy of authority and command, and obeying the laws of war.
Failure to satisfy such criteria can result in the forfeiture of combatant status under the law. While combatants in this legal sense are all presumed to pose a threat, not all of those who pose a threat in war are combatants in this sense.
While all those who pose a threat in war are combatants in the moral sense, a major problem in war theory is that there are many people who pose a threat in war who would not be considered combatants by anyone (McMahan, 2009).
In partial defense of the District Court, I would point out that we do not always require soldiers to prove that enemy soldiers pose an immediate threat before it is considered justifiable to kill them. It may be too late by the time it discovered that suspected enemy soldiers are concealing not only their identities but also their weapons.
The point here is not to argue that Calley should have been relieved of responsibility, but only to indicate that even in this seemingly clear case, two courts came to different conclusions about how to regard the My Lai massacre based on how they reconstructed the threat faced by Calley and his men in Vietnam.
This discussion does not call into question the normal sentiment that innocent life should be preserved. Rather, what is uncertain is the very judgment that a certain adult or even a child is to be seen as an innocent person.
And yet it is this judgment, really a matter of moral perception, which is crucial to the determination of whether it was indeed an outrage for Lieutenant Calley’s unit to kill civilians in the hamlet of My Lai in Vietnam.
Defenses against Killing
In the US tort law, one way to make sense of whether one is liable for a given harm that he or she did not intend to cause is to ask whether one violated a duty of care owed to the person armed (May, 2005). To ascertain if one had such a duty, one looks, among other things, at what the burden would have been to the agent if he or she had conformed to the duty.
If the crucial issue before us concerns the possible culpable ignorance or moral negligence of soldiers, then the tort analysis of duty and negligence becomes relevant. What makes many battlefield situations so tragic is that the cost of acting with due care toward civilians is often that the soldiers risk death to themselves.
In non battlefield situations, one is hardly ever faced with imminent death if he or she exercises due care towards others in his or her life. It is for this reason that the superior orders defense shows up most commonly in the battlefield situations, and not very often off the battlefield.
It may be helpful to think of conspiracy as a model of most types of shared or collective responsibility. If Susan, Smith, and Alex recruit Peter to drive a gateway car in a bank robbery scheme cooked up by Susan, then it makes sense to think of all four as collectively responsible for the resulting bank robbery.
This is especially apparent if Peter is paid well for his contribution and understands perfectly, how her contribution to this joint venture will aid in its successful completion. The driver, Peter, is a cog in a machine like enterprise that will make the robbery possible in ways that would not be true if any of the four people involved were acting on their own or in only a loosely connected manner.
For this reason, they are collectively responsible for the results of their joint undertaking. Their individual responsibility will depend on the role that each plays in the joint venture.
Suppose that while Peter is driving away from the scene of the crime pedestrian steps off a curb in the path of the gang’s fleeing car. Peter, generally a compassionate person begins to apply the brake, but Susan, the insensitive ring leader puts a gun to Peter’s head and urges him to drive on to avoid being court.
Should Peter be held responsible for the injuries of the pedestrian as well as for the robbery? On the assumption that one held a gun to Peter’s head to get him to join the conspiracy in the first place, Peter seems to be in a different moral position with respect to the pedestrian’s injuries than with respect to the robbery itself.
Certainly, Peter appeared to have a choice of whether to join the robbery conspiracy, but not much of a choice about whether to run down the pedestrian. Was it a moral choice of Peter to ignore the order given by Susan?
There are many parallel cases in international law, such as when a soldier or subordinate feels that his or her life is threatened if he or she does not follow orders. The same consideration should be operative, making us reluctant to say that in such situations, there is a moral choice available to the soldier (Kurtz & Turpin, 1999).
In cases of collective guilt, subtleties of context are still relevant in determining how to apportion blame to the members of the group, especially concerning legal blame and guilt (Buhk, 2012).
It is, however, important to place the reasonable person standard into the specific context that the actual person was faced with. In order to do this, it is often necessary to bring in some of the beliefs of the actual person in considering what a reasonable person would have done.
On the other hand, battlefield situations are so abnormal that it will often be hard to merely drop a reasonable person into a situation without taking into account how the actual person in question reacted to the situation. On several occasions, war crime tribunals have had to decide what price is too high to pay in order to expect people to reasonably exercise due care not to injure one another.
In the case of Lieutenant Calley, it may be true that he and his soldiers feared for their own lives if they did not do what they thought they had been legitimately ordered to do. In Calley’s case, he never claimed that someone literally had a gun to his head, forcing him to shoot the civilians.
In the same way, his concern that the seemingly innocent civilians might be enemies in disguise was not sufficient to establish the proposition that he had no other moral choice but to follow orders, for it is important to consider what sort of threat those civilians posed.
If the killings of the civilians had been clearly and unambiguously wrong, then Calley would have needed a very strong showing that he had no moral choice but to do what was clearly and unambiguously wrong.
An important question that to be asked is whether a reasonable person in Calley’s situation would believe that these civilians posed a threat to his safety, and that of his troops. If so, then perhaps even moral choice was restricted in this situation.
Conclusion
Much philosophical discussion about political violence is taken up with argument about whether and to what extent acts of violence can be justified as a means to good ends. According to Kurtz and Turpin (1999), there are limit on what may justifiably be done in pursuit of good or worthy ends. Even though many actions can be justified by their beneficial consequences, some actions are simply wrong in themselves.
Some people typically take the view that, other than in circumstances of war, the only acceptable justification for violence is that of self defense or defense of others from wrongful attack. Persons have moral rights not to be wrongfully injured or killed, and consequently, they have rights to defend themselves against wrongful physical attacks.
It is also sometimes argued that to violently attack someone who is not engaged in or threatening violence is a kin to punishing an innocent person. Conversely, one who engages in wrongful violence against another may be said to have relinquished his or her normal rights to be attacked. We can only be justified in using as much violence against an attacker, however, as is required to defend ourselves.
From the arguments presented in this paper, it is apparent that one of the tests of whether an act of the defendant violates the requirement by law is if the act shocks the conscience of humanity.
In most cases, there is an overlap of the law and morality indicating the relevance of moral matters to questions of whether a crime was committed wrongfully or not. It is, therefore, important for the court to exercise considerable restraint in prosecuting, convicting, and sentencing soldiers for deaths occurring during war.
References
Buhk, T. T. (2012). True Crime in the Civil War: Cases of Murder, Treason, Counterfeiting, Massacre, Plunder, & Abuse. Mechanicsburg, PA: Stackpole Books.
Kurtz, L.R. & Turpin, J. E. (1999). Encyclopedia of Violence, Peace, and Conflict. Massachusetts: Academic Press.
May, L. (2005). Crimes against Humanity: A Normative Account. New York: Cambridge University Press.
McMahan, J. (2009). Killing in War. New York: Cambridge University Press.