The Universal Grammar of the Laws of War: A Theory of Moral Discourse and International Norms

DISSERTATION

Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of The Ohio State University

By

David Jeffords Traven

Graduate Program in Political Science

The Ohio State University

2013

Dissertation Committee:

Alexander Wendt, Chair

Jennifer Mitzen, Advisor

Michael Neblo, Advisor

Copyrighted by

David Jeffords Traven

2013

Abstract

In contemporary political science, many international relations scholars presume that normative restrictions on military violence in world politics are an outgrowth of Western liberal modernity. Indeed, humanitarian norms such as the Geneva Conventions are comparatively recent in world politics, and many political scientists claim that they are a manifestation of new norms of appropriateness in international society. Drawing on historical evidence which suggests that political actors in Ancient China, the early

Islamic empire, early medieval Europe, and modern international society all endorsed similar normative ideas for protecting the victims of war, I claim that humanitarian protection norms are fairly common in the history of advanced civilizations, more common than most political scientists have recognized. For political science, these findings raise an important puzzle: how do we explain why similar moral ideas emerge in very different cultural and material contexts? Extant theories of international norms are not well suited to answer this question because they assume that the initial development of norms is a random process that depends upon human agency, historical contingencies, and the existing material and ideational structure of international society. But if similar norms of war tend to emerge in different social contexts, then the initial factors that prompt the development of international norms may not be all that random after all. To explain how similar norms emerge in dissimilar material and cultural contexts, I argue that the laws of war are rooted in a universal moral psychology, or what some theorists ii call a “universal grammar” of moral discourse. Importantly, this argument implies that the development of modern humanitarian laws and human rights norms was in some sense inevitable: although history could have turned out differently, people tend to have strong psychological reactions to the pain and suffering of war, and these reactions lead them to create more humane international institutions when the opportunities for social change arise.

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Acknowledgments

In the process of writing this dissertation, I have racked up a number of personal debts.

Many thanks go to my superb dissertation advisors, Alex Wendt, Jennifer Mitzen, and

Mike Neblo. Through countless hours and numerous drafts, they have helped make this dissertation what it is, and I cannot thank them enough for their support. To Alex, I want to give special thanks. In a graduate seminar several years back, he once said that PhD. students have an obligation to say something interesting in their dissertations. His advice has inspired me throughout the project, and it will continue to do so in the years to come.

I would like to thank my colleagues Bentley Allan, Stephen Brown, Austin Carson,

Matthew Fulkerson, Caleb Gallemore, Marcus Holmes, Nina Kollars, Jason Keiber, Josh

Kerzter, Tim Luecke, Fernando Nuñez, and John Oates. Not only did their comments and critical feedback shape my thinking in several ways, but their friendship made graduate school a true joy. Finally, I want to thank my family for the support they have given me throughout my graduate school career. To my parents, Max and Christina, thank you for everything. Words cannot do enough. To my wife, Ericka, you have weathered the storm of this dissertation, and I want to thank you for your love and support. Without your encouragement and devotion, I would not have completed it. To my children, Mira and Cyril, who had to sacrifice many hours with Dad so that I could

iv have the time to write, thank you. You amaze and inspire me in countless ways, and for that I am eternally grateful.

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Vita

June 2000 ...... Westerville North High School

2004...... B.A. in Philosophy, Ohio State University

2006...... M.A. in Philosophy, Ohio State University

2006 to present ...... Graduate Teaching Associate, Department

of Political Science, The Ohio State

University

Fields of Study

Major Field: Political Science

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Table of Contents

Abstract ...... ii

Acknowledgments...... iv

Vita ...... vi

List of Tables ...... x

Chapter 1: The Humanitarian Protection Regime and Moral Discourse in IR Theory ..... 1

The Principles of the Humanitarian Protection Regime...... 9

Humanitarian Protection Norms in Non-Western Societies ...... 13

International Norms in IR Theory ...... 15

Potential Objections: Human Nature Arguments and Explaining Disregard for Civilians

...... 28

A Roadmap of the Dissertation ...... 33

Chapter 2: Theoretical Foundations: A Grammar of the Laws of War ...... 36

Intellectual Foundations: A Review of Moral Psychology and Cognitive Science ...... 39

The Generative Grammar of Moral Discourse ...... 51

Structural Conditions, Collective Identities, and the Laws of War ...... 70

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Considerations on Method ...... 76

Conclusion ...... 82

Chapter 3: State Formation and the Morality of War in Ancient China ...... 84

Preface: Moral Discourse and Armed Violence in Anarchic Political Systems ...... 84

State Formation in Warring States China ...... 86

The Intellectual Currents of the Warring States System ...... 97

The Rule of Law in Ancient China ...... 101

War and Peace in Warring States Political Thought ...... 106

Conclusion ...... 115

Chapter 4: Moral Discourse and Armed Violence in Early Islamic Civilization ...... 116

The Sources of Islamic Law ...... 122

Pre-Islamic Arabia and the Formation of the Islamic State ...... 127

Warfare and Violence in Islamic Law...... 133

Conclusion ...... 158

Chapter 5: Justice and War in Western Civilization: The Origins of the Humanitarian

Protection Regime ...... 159

Social Structures and Strategic Interests: The Early Emergence of Humanitarian

Protection Ideas in Western Civilization ...... 164

Western Culture, Moral Universals, and the Laws of War ...... 174

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Conclusion ...... 197

Chapter 6: Moral Discourse and the Laws of War in Modern International Society ..... 199

The Hague Peace Conferences of 1899 and 1907 ...... 208

The Geneva Conventions and the Additional Protocols ...... 232

Conclusion ...... 264

Chapter 7: Universal Justice and Moral Progress in International Law ...... 267

A Summary of the Argument ...... 268

Implications and Future Research ...... 272

Final Thoughts...... 278

References ...... 280

Appendix A: Draft Articles to the Geneva Conventions ...... 298

Appendix B: Articles in the Final Act of the Fourth Geneva Convention...... 300

ix

List of Tables

Table 1: The Limits of Existing Paradigms ...... 28

Table 2: The Mental Building Blocks of Moral Discourse ...... 38

Table 3: The Harmful Action Model ...... 56

Table 4: Casualties of War in Battles with Qin ...... 91

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Chapter 1: The Humanitarian Protection Regime and Moral Discourse in IR Theory

In contemporary world politics, there is a tendency to presume that normative restrictions on state sovereignty and military violence are an outgrowth of Western liberal modernity. To be sure, since at least 1945, humanitarian norms such as the Geneva

Conventions and international human rights laws such as the Torture Convention have proliferated rapidly. Furthermore, these norms have increasingly circumscribed the traditional notion of sovereignty in international law. International relations scholars often claim that such restrictions on state violence are a figment of the modern world and that they derive from “new norms” of appropriateness in international society.1 Using the humanitarian protection regime as a test case, in this dissertation I argue that central aspects of this conventional narrative are deeply mistaken.2 Drawing on historical evidence which shows that social actors in Ancient China, the early Islamic empire, early medieval Europe, and modern international society all endorsed very similar normative principles for protecting the victims of war, I claim that the development of norms for constraining military violence is not a distinctively modern process nor is it one that

1 For a discussion of these norms in international relations scholarship, see Peters (2009), Barkin (1998), Krasner (1999) Finnemore (2003), Crawford (2002), and Goldstein (2011, 224-228). 2 As I discuss below, the humanitarian protection regime is constituted by three central principles: (1) the principle of distinction, which holds that states cannot intentionally attack civilians in war; (2) the principle of proportionality, which holds that the anticipated costs of risky military strategies must be proportional to their benefits; and (3) the principle of unnecessary suffering, which holds that states are not permitted to implement strategies or to use weapons that inflict unnecessary amounts of suffering on combatants and non-combatants alike. See Kinsella (2011), Carpenter (2006), and Kalshoven (2000). 1 builds on uniquely Western liberal values.3 The evolution of norms for restraining the violence of war is fairly common in the history of advanced civilizations, more common than most political scientists have recognized.

For international relations scholarship, these findings raise an important puzzle: how do we explain why similar normative ideas emerge in very different cultural and material contexts? This question is particularly important because it reveals important inadequacies in existing theories of international norms. Indeed, standard theories of international norms are ill suited to answer this question because they tend to assume that the initial development of norms is a fairly random process that depends upon a confluence of historical events, the activities of individual norm entrepreneurs, and the existing material and ideational structure of international society.4 As Martha Finnemore and Kathryn Sikkink point out in their influential article on norm dynamics and international change, most theories of norm emergence “stress human agency, indeterminacy, chance occurrences, and favorable events.”5 That people living in civilizations that shared few or no social contacts still managed to develop similar normative ideas for restraining armed violence suggests that the initial factors that prompt the development of moral ideas and norms may not be all that random and indeterminate after all. More broadly, it suggests that the development of humanitarian norms and international human rights may possess an element of inevitability that most theories of norm emergence do not capture.

3 In this article, I define “norms” as ethical standards of appropriateness in international society. I do not presume that international norms describe behavioral regularities, but rather I presume that they describe the moral standards that people and states adopt. See Finnemore & Sikkink (1998) and Crawford (2002). 4 See Finnemore & Sikkink (1998), Crawford (2002), and Florini (1996). 5 Finnemore & Sikkink (1998, 896). 2

To explain how similar moral ideas emerge in distinctive cultural and material contexts, I argue that humanitarian protection norms are grounded in a universal moral psychology, or what some theorists call a “universal grammar” of moral discourse.6 This theory of moral discourse and international norms builds on recent scholarship in moral theory, cognitive science, social psychology, and social anthropology, and more broadly it builds on the “modular” theory of mental structure made popular in Noam Chomsky’s work in linguistics. The modular theory of mind holds that the human mind is composed of a set of distinct processing systems, each devoted to particular tasks and capacities such as language, audition, vision, face recognition, musical cognition, social cognition, and so forth.7 Importantly, the modular theory of mind implies that these capacities and skills are, to a substantial degree, innate and universal. Individuals are “born knowing” important facts about the structure of human languages,8 the basic structure social relationships,9 and, I argue, elementary principles of moral action.10 In this dissertation, I build on these insights to explain how it is possible for political actors who are embedded in diverse social environments to converge on similar moral ideas for restraining the use of military violence. I argue that there are strong reasons to believe that the central principles of the humanitarian protection regime are rooted in shared cognitive schemas and emotional response patterns that govern how people morally react to the pain and suffering of war. On this view, the moral ideas that underpin the laws of war are an

6 See Mikhail (2000), Mikhail (2002), Mikhail (2011), Dwyer (2005), Dwyer (2009), Hauser (2006), Hauser et al. (2007), and Huebner et al. (2008). For an application of this idea to comparative criminal law, see Mikhail (2009), and for a brief application to the Rome Statute of the International Criminal Court, see Mikhail (2002, 1107). 7 See Mikhail (2011, 3), Smith (2005), and Jackendoff (2007). 8 See Fodor (1984, 4) and Chomsky (2000). 9 See Fiske (1991) and Rai & Fiske (2011). 10 See Mikhail (2007), Dwyer (2006), Dwyer (2009), and Huebner et al. (2008). 3 outgrowth of a shared human nature, one that leads people to evaluate armed violence by reference to particular normative standards. As legal scholar John Mikhail notes, the idea that “an innate moral faculty…supplies the foundation of the jus gentium or law of nations” was central for early modern accounts of international law, particularly that of

Hugo Grotius.11 Thus, this dissertation helps build more empirical support for an idea that has been quite central for the study of international law from its very beginnings.

As societies progress and as people develop ties of collective identity with each other, they begin to use similar normative principles for governing their relationships; among these principles are those that protect innocent people in war. Although the universal grammar theory of moral discourse and international norms holds that humanitarian norms are rooted in a common moral psychology, I make no presumption that such norms are always recognized or always effective. For instance, when the

Spanish empire conquered South America in the 16th century, they viewed indigenous peoples as subhuman animals that had few if any rights to ethical treatment. Aside from notable exceptions like Bartolomé de las Casas and Francisco de Vitoria,12 the Spanish did not recognize the Indians as moral subjects demanding respect; they viewed them as objects that could be exploited at will. With respect to warfare and violence, this meant that the Spaniards recognized few moral restraints in how they treated the Indians in war.

Similar claims can be made about the destruction of Indian civilizations in North and

South America and about the treatment of Africans during the height of the transatlantic

11 Mihail (2011, xv). 12 See Crawford (2002) and Vitoria (1991). 4 slave trade.13 It is only when ties of collective identity are sufficient dense that political actors recognize an obligation to refrain from using unmitigated violence against civilian populations in war.14

Furthermore, I claim that humanitarian protection norms are more likely to emerge in societies that are materially advanced. Although some evidence does indicate that earlier societies endorsed rules similar in kind to that of non-combatant immunity,15 it makes sense to view these rules as influenced in part by the material forces that underlie the development of “modern” societies. Why should this matter? Because in order for people to create and uphold social institutions that aim to protect civilians in war, they need to have the material resources to produce legal institutions in the first place—resources that only emerge with a relatively high level of economic and social development. This does not mean that earlier societies did not have sophisticated rules for protecting the victims of war, and as I note in Chapter 4 there are important exceptions to this rule, but it does mean that they were less likely to have them. For instance, the kinds of institutions in contemporary world politics that are important for establishing shared rules of interaction, e.g. conference diplomacy and international law, only emerged when states and collectivities had the material resources to sustain complex

13 Crawford (2002). 14 Even when ties of collective identity are sufficiently dense, this does not immediately imply that humanitarian protection norms will always be effective in practice. After all, moral and legal norms are not always motivationally effective. See Downes (2008) and Roskies (2003). Although my psychological analysis of moral discourse may help us better understand the factors that make moral and legal norms effective, this dissertation project is strictly focused on understanding how moral and legal norms emerge in dissimilar social contexts. I do not presume that norms will always be effective in practice. 15 For instance, historian Fred Donner argues that Bedouin peoples who inhabited the Arabian Peninsula before the advent of Islam recognized a rule of non-combatant immunity. See Donner (1991). 5 bureaucratic structures.16 When political communities do not have the material resources to sustain diplomatic interactions with each other, it is less likely that they will have well- developed norms for governing their relationship, let alone norms that aim to protect non- combatants in war. However, when they do have such resources, my claim is that they are likely to create institutional norms that have a specific moral content, one that extends protection to vulnerable individuals in war. To that extent, the material context acts as a constraint on the kinds of social norms that can emerge in any given society. Yet, this does not mean that the material environment determines the content of social norms.

Existing cultural institutions play an important role here, but in this dissertation I claim that the universal structure of the human mind motivates actors to create norms that have a particular content. People create norms in response to their material and social environment, but the nature of the mind leads them to create norms that give greater recognition to the lives and interests of civilians in war.

Before moving on, the following points should be kept in mind. Although the theoretical framework that I develop in this dissertation builds on the universal moral grammar hypothesis in moral philosophy and psychology, it adds to the discussion in at least three ways. First off, I provide a larger cross-cultural and cross-temporal basis for making the claim that some moral and legal precepts are universal, or are at least broadly universal. Much recent work on the universal moral grammar hypothesis has focused on

16 This claim is influenced by Fred Donner’s point that material advancements like agricultural productivity were important for the development of complex political structures in pre-Islamic Arabia. Donner claims that these factors make it possible for people to construct more sophisticated political institutions. See Donner (1981). 6 relatively recent societies and legal systems,17 but to make the claim that some moral precepts are universal, we need to look at a much larger cross-cultural and inter-temporal database of moral and legal principles.18 The empirical analysis of the norms of war that

I present in this dissertation significantly advances work on moral universals in this regard. Second, I develop a test between the claim that normative precepts are grounded in moral psychology and the claim that they are grounded in other factors, such as the distribution of political power, culture, or strategic interests. As Mikhail points out,

although a plausible argument can be made for the proposition that codified legal norms are a useful source of information to draw inferences about human psychology, one should approach this endeavor cautiously. Even with respect to the substantive criminal law the number, and variety of factors that determine the form and content of such codes beggar the imagination. Evidently, the mind’s own hidden rules of moral judgment are merely one of many variables entering into this process. This complexity and the resulting idealization that any such endeavor necessarily assumes must be kept firmly in mind, particularly when one is considering the possibility of relating universal features of criminal law to features of human nature.19

My dissertation helps respond to this problem in two ways. First, I aim to illustrate, to the greatest extent possible, how the features of the mind interact with mind-independent social facts to generate the kinds of international legal norms that we observe in world politics. Second, I empirically test whether alternative explanations of social norms can fully explain why diverse anarchical societies converge on similar norms, and whether it is necessary for alternative theories to include an account of moral psychology. Finally, my dissertation contributes to work on the moral grammar hypothesis by providing an in- depth look at the extent to which moral discourse affects the normative legal structures of

17 See Mikhail (2010). 18 See Mikhail (2011, 179). 19 Mikhail (2009, 515). 7 international politics. In my discussion of modern humanitarian law, I provide a detailed analysis of the role of moral talk in diplomatic negotiations. Although this may violate what some moral grammar theorists call the “competence-performance” distinction,20 by analyzing patterns of everyday discourse, we can discern the extent to which moral talk in international negotiations coheres with the kinds of mental rules that the proponents of the moral grammar hypothesis emphasize. International law is created through social processes involving communicative interaction, so if we want to understand how the moral faculty influences the content of the law, we need to look more directly at how people put their tacit moral knowledge to use. Thus, although my dissertation is indebted to this interestingly line of work, it adds to the discussion in these important respects.

This introductory chapter is organized as follows. In the following section, I outline the central precepts of the humanitarian protection regime that I argue are fairly universal across civilizations. I then demonstrate why existing theories of international norms have difficulty explaining why humanitarian protection rules emerge in distinctive social environments and why IR theorists need a new, psychological account of norms.

Finally, I address two objections that one might raise against the account of discourse and norms that I construct in this dissertation. First off, one might argue that insofar as my theory of moral discourse and international norms makes assumptions about human nature, it will have a difficult time accounting for variations across societies and cultures.

20 See Mikhail (2011, 17-19, 51-56) and Dwyer (2009). As Mikhail points out, “a generative grammar is not a model of performance; it does not represent, in other words, a theory of behavior, of how speaker- hearers do or might in fact proceed or produce linguistic expressions. Rather, a generative grammar is a theory of linguistic competence,” (2011, 53-54). So too, he claims that a grammar of moral judgments is a theory of moral competence, not performance. However, to explain how the moral faculty influences the content of international norms, we need to move from the domain of moral knowledge to moral performance. We need to understand, at least in a preliminary sense, how moral knowledge is put to use to create the structures of social life. 8

Second, one might argue that my theory of the laws of war cannot explain why some societies blatantly disregard any moral restraints on the use of force, particularly in their treatment of non-combatants. I conclude with a brief roadmap of the dissertation.

The Principles of the Humanitarian Protection Regime

The humanitarian protection regime is composed of both customary international norms and multilateral treaties. The design features of the regime are quite broad, ranging from rules that govern the treatment of civilian populations in occupied territories to those that govern the provision of medical treatment to pregnant mothers and civil internees. Many such regulations bear the mark of unique historical circumstances, and so the extent to which we should expect such rules to emerge in earlier civilizations is limited. As one might expect, World War II had an immense impact on the content of the

1949 Geneva Conventions, and it is possible to interpret most of the provisions of the fourth Geneva Convention on civilians as a response to the experiences of this 20th century tragedy. Article 149, for instance, holds that any biological experiments conducted on protected persons constitute a “grave breach” of the Geneva Conventions.

Nazi experiments on Holocaust victims were certainly foremost in the minds of those who designed this particular article. In that sense, the modern humanitarian protection regime was responsive to the unique social conditions of the 20th century. Yet, the regime also incorporates principles that are not so clearly bound to the particularities of any historical period, and indeed its central principles are trans-historically valid. Here I

9 focus on three such principles: the principle of distinction, the principle of proportionality, and the principle of unnecessary suffering.21

The principle of distinction holds that, on the battlefield, states are required to distinguish between military targets and non-military targets. Intentional attacks on civilians or civilian objects—e.g. homes, schools, businesses, and universities—are defined as war crimes. According to the Rome Statute of the International Criminal

Court, if such attacks are “committed as part of a widespread or systematic attack directed against the civilian population,” they are regarded as crimes against humanity.22

Of course, distinguishing between combatants and civilians—between those who can be legitimately killed and those who cannot be—is, and always has been, fraught with difficulty.23 The first Protocol Additional to the Geneva Conventions, however, defines a civilian as any member of the population of a belligerent power who is not a member of the armed forces. As this definition makes clear, civilian persons do have the luxury of being protected by international law, but they are also legally obliged to refrain from participating in hostilities; if they fail to do so, they are liable to lose their immunity.

As a concession to military “realities,” international law permits states to implement strategies and tactics that may lead to incidental civilian deaths. However, in

21 Perhaps it goes without saying, but it should be noted that these three principles are not the only ones that I take to be cross-culturally valid. Indeed, my research shows that political actors in diverse cultural circumstances have endorsed other norms that I do not comment on in this dissertation. For instance, it is clear that many actors endorse the idea that states can go to war for self-defense or to protect vulnerable people in other territories. Indeed, Confucian scholars in Warring States China endorsed an understanding of permissible warfare that is very similar to the modern doctrine of humanitarian intervention. In fact, the Confucian theory of the righteous war is almost a mirror image of the modern doctrine of the responsibility to protect that arose in the aftermath of NATO’s intervention in Kosovo. See Wang (2010) and Bell (2006) for more on this. However, since my focus here is on the jus in bello laws of war, I restrict my discussion accordingly. 22 Article 7.1. 23 See Kinsella (2011) for a discussion of these issues. 10 such cases states are required to abide by what is known as a rule of proportionality. This rule holds that the attack in question must not only be militarily necessary but that the damage to civilians and civilian property must not be excessive in relation to the

“concrete and direct overall military advantage anticipated.”24 The rule of proportionality has a long pedigree in the history of the laws of war, going back to the work of St.

Thomas Aquinas. In addition, as I suggest below in Chapter 4, it also had counterparts in the work of medieval Islamic jurists during the early period of the Islamic conquests in the Middle East and North Africa. The rule is designed to make a concession to the accepted “fact” that non-combatants are likely to die as a result of war. Ideally, it helps make sure that civilian deaths do not cross a certain threshold.25 As I demonstrate below in Chapter 2, the content of this rule, not to mention the principle of distinction, seems so compelling because it is based upon elementary cognitive precepts that govern our moral intuitions.

Lastly, the principle of unnecessary suffering holds that states are not permitted to use weapons or tactics that inflict undue physical or psychological trauma on combatants and non-combatants. As noted international jurist Frits Kalshoven points out, the

“general prohibition” on using weapons that “cause unnecessary suffering reflects” the precept that considerations of “military necessity must be balanced against the requirements of humanity.”26 States are not permitted to use weapons that will inflict an

24 Rome Statute of the International Criminal Court, Article 8.2(c). Also, see Protocol (I) Additional to the 1949 Geneva Conventions. 25 Critical legal theorists rightly argue that this rule concedes too much to the notion of military necessity and that it is therefore biased toward military interests. See Jocknick & Normand (1994). Yet, to the extent that this rule places any restrictions on military practice, it does concede to the interests of vulnerable populations as well. 26 Kalshoven (2001, 22). 11 amount of suffering on combatants that is unnecessary to the end of placing them hors de combat, or “unfit for battle.” Though the evidence does show that this principle is not universal (I find no clear textual evidence of such a precept in the Warring States period in China), it does build upon a general precept that prohibits unnecessary harms, i.e. harms that are not necessary for achieving some morally permissible objective. As I discuss in the following chapters, human societies, advanced civilizations in particular, tend to regard violence as an instrumental resource: it is only to be used for certain purposes. Any violence that exceeds such purposes is unnecessary and illegitimate. I claim that this basic precept is universal.

The social implications of these three principles are quite extensive. Not only do they define the range of permissible strategies and tactics that states can implement in war, but they also influence the standards of appropriateness for modern weapon systems and ammunition, the jurisdiction of international criminal tribunals, and the socially constructed definitions of “civilized” versus “uncivilized” states. States that abide by these norms are civilized and modern; those that fail to do so, that actively seek out and kill civilians, or mistreat enemy soldiers are generally defined as “rogues” or “outlaws” who deserve to be punished. Hence, these principles are not just regulative rules whose impact on world politics can be measured by analyzing their effects on military practices; they can also be interpreted as constitutive rules that define certain modes of conduct as civilized or uncivilized, acceptable or unacceptable. The humanitarian protection regime, therefore, has immense cultural and symbolic significance for the modern international system. Identifying the causal factors that lead civilizations to converge on these

12 normative restraints is thus instrumental in gaining a deeper understanding of international politics.

Humanitarian Protection Norms in Non-Western Societies

A compelling case can be made for the claim that the humanitarian protection regime emerged out of a confluence of social forces intrinsic to Western society. The

Christian just war tradition has long held that deliberate attacks on innocent civilians are immoral, and Western liberal ideas concerning “the rights of man” may seem to have made the emergence of a humanitarian protection regime in the 19th and 20th centuries all but inevitable. Since at least the American and French Revolutions, the idea of human rights has had a significant influence on how states define the terms of legitimate statehood and practice in world politics, and so the application of these ideas to the context of warfare seems almost natural. Indeed, the diplomatic conferences that led to the 1949 Geneva Conventions were replete with references to the notion of human rights.

Jean Pictet, a former president of the International Committee of the Red Cross (ICRC), claimed that the aim of the Geneva Conventions “is to safeguard respect for the human person, the fundamental rights of man and his dignity as a human being, in the hope that universal peace—the desire of all men of good will—may one day be established.27

Despite these considerations, the ideas that underpin the humanitarian protection regime are not mere artifacts of Christian culture or Western liberalism. Almost all anarchic political systems have cultural norms that restrict how actors can use organized violence, and many systems have norms that are mirror images of the rules of the

27 Pictet (1954, 175). 13 humanitarian protection regime. In Ancient Greece and in Ancient India, prisoners of war and non-combatants were afforded some protections against military violence, and an ancient Hindu text known as the Manusmiriti devotes an entire chapter to the laws of war:

Let no man, engaged in combat, smite his foe with sharp weapons concealed in word, nor with arrows mischievously barbed, nor with poisoned arrows nor with darts blazing with fire; nor let him in a car or on horseback strike his enemy alighted on the ground….nor one, who sues for life with closed palms; nor one whose hair is loose and obstructs his sight; nor one who sits down fatigued; nor one who says, “I am thy captive.”; nor one who is at sleep; nor one who has lost his coat of mail; nor one who is naked; nor one who is disarmed; nor one who is spectator, but not a combatant; nor one who is fighting with another man.28

In a military treatise authored during Warring States China known as the Si Ma Fa, a section on occupying enemy territory contains the following commandments:

When you enter the offender’s territory, do not do violence to his gods; do not hunt his wild animals, grain, or implements. When you see the elderly or very young return them without harming them. Even if you encounter adults, unless they engage you in combat do not treat them as enemies. If an enemy has been wounded, provide medical attention and return him.29

Likewise, a famous verse in the Qur’an commands believers to “fight in the way of Allah with those who fight you, and do not exceed the limits, surely Allah does not love those who exceed the limits.”30 According to the dominant interpretation of Islamic law, the reference to exceeding “the limits” in this verse refers to the limits imposed on individual action by the sayings and customs of Muhammad.31 In a well-known hadith—a report on the sayings and practices of the Prophet—it was reported that Muhammad disapproved of

28 Quoted in Subedi (2003, 354-355). 29 Sawyer (1993, 128). 30 Surah 2:190. 31 See Hashmi (2002, 210), Firestone (1999), and Bonner (2006). 14 intentional attacks on women and children.32 In line with the sunna, or customs, of the

Prophet, later Islamic jurists outlined rules for implementing military attacks that are strikingly similar to the modern rules of distinction and proportionality.33

In Chapters 3-5, I provide more evidence to support the claim that anarchic political systems tend to converge on similar humanitarian protection norms. Yet, the evidence adduced thus far is sufficient to refute the idea that these norms are artifacts of

Western culture, the Christian just war tradition, or modern liberalism.34

International Norms in IR Theory

These findings raise an important puzzle for theories of norm emergence in international relations scholarship: how do we explain why similar moral and legal rules emerge in different material and cultural contexts? Before defending my own answer to this question in the following chapters, in the rest of this section I explain why existing theories are ill equipped to handle it. There are three approaches to explaining how social norms emerge in international politics: a constructivist approach that emphasizes shared ideas, culture, and norm entrepreneurs, a materialist approach that emphasizes material capabilities and structural conditions, and a rationalist approach that emphasizes strategic interests. While extant theories of norm emergence in IR scholarship are useful for

32 Khan (1993, 159). 33 See Khadduri (1966). 34 In The Image Before the Weapon, Helen Kinsella (2011) presents an additional explanation of the civilian immunity principle. She claims that gender discourses constitute the distinction between combatants and non-combatants. This is an interesting and plausible claim, but it does not explain how people in earlier civilizations made distinctions between combatants and non-combatants without making references to gender. For instance, none of the sacred texts in the Warring States period suggest that gender differences should be used to distinguish between combatants and non-combatants. In Chapter 5, I discuss Kinsella’s interpretation of the civilian immunity norm in greater detail. 15 certain purposes, they are of limited use for explaining how similar ideas emerge in distinctive social contexts. The moral grammar theory of discourse and international norms that I defend in Chapter 2 thereby contributes to our knowledge of world politics.

Materialist Theories

Materialism holds that structural conditions, by which I mean the geographic, economic, and power-political constraints within which actors are embedded, are the primary causal determinants of cultural symbols, norms, and practices in any society.35

The clearest example of materialism in IR theory is Marxism, but its central tenets are endorsed by many schools of thought. Indeed, realists such as Kenneth Waltz, Robert

Gilpin, and John Mearsheimer fall clearly within the materialist fold. In any case, there are two kinds of materialist theories that may be relevant for explaining the emergence of the humanitarian protection regime: societal-functionalist theories that leave little room for individual agency, and structural-systemic theories that depend upon assumptions about intentional agency.36 To make way for the theory of moral cognition and discourse that I defend in Chapter 2, here I argue that the most plausible account of the humanitarian protection regime must be grounded in a theory of intentional agency.

Structural factors are not rigid enough to lead actors to uniquely converge on humanitarian protection ideas. That is, without making assumptions about cognitive psychology, we cannot fully explain why political actors would endorse humanitarian protection norms in any structural circumstances.

35 For an excellent discussion of materialist and constructivist theories in IR, see Snyder (2002). 36 See Pierson (2004, 105) 16

Functionalist theories hold that we can explain certain social phenomena by identifying more clearly the functions that they serve.37 To explain the emergence of capitalism, for instance, we need to know how economic markets helped actors resolve functional problems in their social environment. For classical social theorists, social systems were viewed as similar in kind to natural systems like organisms: both of them have fundamental needs that must be satisfied and both of them must have ways of maintaining systemic integrity. For functionalism, to explain a certain aspect of social reality is to explain how it satisfies the needs of a social system. However, contemporary social theorists have tended to jettison the idea that social systems have needs, and instead they emphasize material forces and constraints.38 On this view, we should explain social facts like the emergence of humanitarian protection ideas by identifying the social forces and situational constraints that lead people in anarchic systems to adopt them.

Functionalist or structural theories tend to downplay the role of intentional agency. In fact, “invisible-hand” versions of functionalism explicitly jettison any significant references to actor intentions, preferring instead to explain social outcomes by reference to the constraints and opportunities inherent in the structure of the social system—constraints and opportunities that exercise downward pressure on the actions of individual agents. Adam Smith’s argument about the efficiency of markets is the clearest example of an invisible-hand process: it does not matter whether producers and consumers intend to provide for each other’s needs, for the structure of economic markets

37 Ullmann-Margalit (1979). 38 Turner (2010). 17

“brings” actors to the most efficient outcome. Such explanations are useful for explaining social outcomes that arise through the unintended consequences of millions upon millions of actions. However, invisible-hand functionalism is not very useful for explaining the emergence of the humanitarian protection regime. Although no actor ever intended to bring about the humanitarian protection regime as a whole, they did intend to bring about its constituents, namely individual treaties like the Geneva Conventions.

Since actor intentions were important for the creation of the civilian protection regime, an invisible-hand explanation is almost certainly inadequate.

Some materialist and structural-systemic theories relax the assumption that intentionality is irrelevant for explaining social outcomes. On these views, social structures constrain the opportunities of intentional action, but the “movement” of such structures depends upon the beliefs and desires of individuals and collective actors.39

Importantly, social structures operate through individual desires and beliefs.

Nevertheless, the proponents of such theories generally argue that most of the

“interesting stuff” takes place at the level of material structures, not intentional agency.

For instance, Waltz presumes that states desire to maintain their sovereignty, but he claims that the anarchic structural of the international system, along with the distribution of material capabilities, constrains the range of possible outcomes that can emerge in the international system. To explain why balances of power tend to arise we simply assume that all states desire to survive and that they have no centralized power structure to keep their behavior in line.40 Similarly, one might argue that in order to explain how anarchic

39 See Waltz (1979), Wendt (1999), and Wendt (2003, 10). 40 See Waltz (1979). 18 systems converge on similar normative protections for civilians, all we need to do is identify the social conditions that make the development of such normative structures more likely. To explain why humanitarian protection ideas emerge, we should consider the values and interests of the most powerful actors in the system, since it is these actors who have a domineering influence on the cultural norms and institutions that prevail in any particular time period. As Robert Gilpin notes in his discussion of modern international law,

Although the rights and rules governing interstate behavior are to varying degrees based on consensus and mutual interest, the primary foundation of rights and rules is in the power and interests of the dominant groups or states in a social system… In every social system the dominant actors assert their rights and impose rules on lesser members in order to advance their particular interests… In the modern era, what we call international law was imposed on the world by Western civilization, and it reflects the values and interests of Western civilization.41

With respect to modern international humanitarian law, the problem with this view is that the great powers did not in any clear sense impose this system upon the rest of the world. In fact, some of the most important actors were not even states but NGO networks like the ICRC.42 Moreover, relatively weak states such as Third World countries that were newly liberated from Western dominance had an impact on the legal system that was out of proportion to their rank in the status-hierarchy of international politics. However, for our purposes the most significant problem with any materialist or structural-systemic theory is that material structures do not directly determine what kinds of norms or laws will emerge in any social system. There are no unique structural forces that generate support for humanitarian protection ideas in advanced societies. Structures

41 Gilpin (1981, 35-36). 42 See Finnemore (1999). 19 shape and constrain our possibilities, and they may even make some ideas more prevalent than others. However, they do not determine which ideas out of the range of possibilities will “stick out” as the appropriate way to constrain social violence. Structural forces exert causal pressure on norms and ideas—they “select against” them to use Darwinian terminology—but they do not generate ideas in the first place.43 People do not respond to the material or social environment in the quasi-hydraulic fashion that structuralists and functionalists seem to presuppose, but rather they impose their mental representations onto shared cultural practices.44

If materialist theories were correct, we would expect to be able to identify a set of unique structural factors that make societies more likely to converge on humanitarian protection ideas. Moreover, we would need to make few assumptions about the nature of individual psychology to explain why people adopt particular norms and rules. But in

Chapters 3-6, I demonstrate that the social world is not so simple: the historical record indicates that diverse structural conditions can give rise to similar ideational structures, and this suggests that materialist theories of norms are insufficient. In addition, without making crucial presumptions about how people experience the social world, materialist theories cannot tell us very much about the content of social norms. In short, materialism cannot explain why actors converge on similar normative precepts for constraining the use of armed violence.

Constructivist Theories

43 See Florini (1996). 44 Sperber (1996, 113). 20

Martha Finnemore and Kathryn Sikkink claim that international norms develop through stages and cycles, and that the first stage, norm emergence, is characterized by high levels of human agency and historical contingency.

Although little theoretical work has focused exclusively on the process of “norm building,” the accounts of norm origins in most studies stress human agency, indeterminacy, chance occurrences, and favorable events, using process tracing or genealogy as a method. Generalizing from these accounts, two elements seem common in the successful creation of most new norms: norm entrepreneurs and organizational platforms from which entrepreneurs act.45

This claim about the role of human agency and historical contingencies certainly makes sense. Indeed, were it not for the unique devastation of World War II and the tireless efforts of the International Committee of the Red Cross, the Fourth Geneva Convention on the protection of civilian persons in war may not have been designed, signed, or ratified. And as Finnemore notes in an article about the first Geneva Convention of 1864, a convention that was designed to protect medical personnel in battle, the work of norm entrepreneur Henri Dunant was critical.

What [was] essential to the origin of the ICRC and the Geneva Convention [was] the role of a few morally committed private individuals—individuals without government positions or political power—and the elite networks they were able to use to build a transnational organization.46

Although the focus on norm entrepreneurs as sources of innovation and norm emergence is right so far as it goes, the emergence of similar norms in different social contexts raises a problem for the idea that the development of humanitarian protection norms is a process based on historical contingency and random happenstance. My comments in the preceding section clearly show that there is a tendency for similar norms

45 Finnemore & Sikkink (1998, 896). 46 Finnemore (1999, 163). 21 to emerge in different social contexts, and so there is a sense in which the development of humanitarian protection norms was not contingent in the strict sense of the term. In the following chapter I argue that these norms are ultimately rooted in a shared human nature, or a universal moral psychology, and that as long as opportunities for change exist, people will attempt to create institutions that restrict the infliction of arbitrary state violence. Finnemore and Sikkink do suggest that something like this might be at play in motivating norm entrepreneurs to challenge dominant political structures, but they stop short of arguing that the development of humanitarian norms is a result of a shared human nature.47 But without a theory that explains why people are so committed to particular normative rules, and why people in different material and cultural contexts share similar commitments, it is difficult to explain why humanitarian norms seem to pop up in varying circumstances.

What is more, the idea that normative precepts and values emerge from a shared human nature is at odds with most constructivist theories of intentional agency. Most constructivists hold that cultural ideas and symbolic structures constitute the identities and interests of social actors.48 On this view, moral ideas do not arise from the innate and universal structure of the mind, but rather they arise from the dominant standards of appropriateness in the extant social environment.49 Actors come to adopt a particular moral outlook by internalizing external rules. As Ian Hurd points out in his influential article on legitimacy, states come to regard international norms as legitimate through a

47 They claim that “[it] is very difficult to explain the motivation of norm entrepreneurs without reference to empathy, altruism, and ideational commitment,” Finnemore & Sikkink (1998, 898). 48 See Wendt (1999), Hurd (1999), Reus-Smit (1999), Reus-Smit (2004), Finnemore & Toope (2001), Brunnee & Toope (2000), and Crawford (2002). 49 See Wendt (1999, 133). 22 process whereby they internalize external standards of behavior.50 These claims about the cultural sources of moral beliefs make it difficult for constructivists to explain why culturally diverse civilizations converge on similar ideas for protecting civilians in war.

If the belief systems that people use to evaluate military practices are primarily imported from the external social environment, as most constructivist theories lead us to expect, then we would not observe the striking levels of continuity in the normative ideas that political actors endorse. Since my theory of discourse and norms holds that some moral beliefs arise from the innate and universal structure of human mind, it has an easier time explaining how such a phenomenon is possible.

Rationalist Theories

From the perspective of rational choice institutionalism, states design institutions to advance a set of interests and to resolve various kinds of cooperation and coordination problems.51 Ethical discourse and communicative interaction are important insofar as they facilitate the exchange of information and enable states to establish credible commitments to follow through on their promises. Consequently, the rational choice approach to international norms has two basic components. First, adopting the view that states use norms to satisfy their interests, rationalists claim that states use moral (and legal) discourse in ways that resonate with their self-interested preferences. Second, rationalists believe that social norms, discourse, and deliberation are only important

50 Hurd (1999, 388). Neta Crawford makes a similar claim when she suggests that “culture often provides the content for specific philosophical, instrumental, normative, and identity beliefs.” See Crawford (2002, 71). 51 See Keohane (1984), Abbott & Snidal (2000), Abbott et al. (2000), Koremenos et al. (2000), and Oye (1986). 23 because they help political actors reach mutually acceptable outcomes.52 As Stephen

Krasner points out, “for rational choice institutionalism, principles, rules, and norms are equilibrium outcomes, the result of self-interested voluntary choices.”53 On this view, one might argue that similar norms emerge in different social and cultural contexts because they help political actors resolve collective action problems in ways that are mutually beneficial.

When it comes to the laws of war, rationalism has two important inadequacies.

First off, the kinds of norms that are central to the humanitarian protection regime are not mere coordinating mechanisms that actors rely on to overcome collective action problems. As I demonstrate in the empirical chapters below, political actors do not always predicate their endorsement of civilian protection norms on whether they expect their rivals to uphold them. Indeed, given immense geographic constraints, the leaders of the Islamic empire did not have to worry that the peoples they conquered in North Africa would attack their own civilians; yet, Islamic jurists still argued that women and children in enemy lands should be spared the devastation of armed violence. Moreover, few moral and political theorists in any of the political systems that I analyze explicitly claim that the observance of the civilian protection norm should be predicated on whether one’s opponents comply. The idea of reciprocity is important for moral discourse and international norms, but it does not constitute the reason why political actors endorse norms for protecting the victims of war. They view these rules as inherently normative,

52 Fearon (1998, 45-59). 53 Krasner (1999, 59). 24 which means that their “obligatory” nature is thought to be independent from whether they can effectively coordinate social action.

Another way to put the same point is to say that rationalism recognizes no distinction between social conventions and morally grounded norms.54 Social conventions are arbitrary rules grounded in a local consensus about how people should behave in particular contexts.55 Such rules are important for the social order because they reduce uncertainty about what other people are going to do, and so they help actors coordinate their strategies. In general, we should expect actors to comply with them to the extent that others do so as well. Driving on the right-hand side of the road is a perfect example of a social convention: if everyone in the United States decided to start driving on the left-hand side of the road, drivers would cease to have any reason to drive on the right-hand side on the road. Traffic rules are only important to the extent that other actors follow them. Morally grounded norms, which I define as rules that are based on considerations of social justice or human welfare,56 are not so arbitrary: people believe that they possess an obligatory force regardless of the social context. For instance, the reason why most Americans refrain from killing innocent people has very little to do with the fact that it violates a norm of etiquette; it is because they believe killing the innocent is inherently wrong. These considerations imply that we should observe actors endorsing morally grounded norms (e.g. “do not kill innocent people”) regardless of whether they promote reciprocity and cooperation. Indeed, with respect to the laws of war, the

54 See Crawford (2002, 94-95). 55 Turiel (1983). 56 See Turiel (1983). 25 historical evidence supports this interpretation: actors do not generally predicate their endorsement of these norms on whether they can expect others to follow them.57

Secondly, to the extent that rationalism is founded upon an expected-utility model of decision-making, it cannot account for the design features of the laws of war. As I mentioned earlier, the humanitarian protection regime is based upon three central principles: (1) military commanders and individual soldiers cannot intentionally attack civilians or civilian objects; (2) if civilians die as a result of military strategies and tactics, any civilian losses must be proportional to anticipated military gains; and (3) the amount of suffering imposed on combatants must not be more than necessary to place them hors de combat.

The expected-utility model of action cannot explain why people make the crucial distinction between intentional harms and unintentional/merely-foreseen harms. One might argue that this distinction is merely designed to concede to military realities: it is a regrettable “fact” of international life that innocent civilians will die as a result of militarized disputes. However, it is implausible to believe that the distinction between intentional and unintentional harms is merely based on expected-utility calculations.

Indeed, on the rational choice view, the only reason why states endorse the principle of distinction is because they do not want their own civilians to die. Whether their civilians are killed as a result of intentional or unintentional strategies should make no material difference to their calculations as long as such deaths are minimized. However, there are other ways to minimize civilian deaths that do not rely upon endorsing this distinction: states could have decided to endorse what I will call the “compensation rule.” Rational

57 For a rationalist analysis of the laws of war, see Morrow (2007) and Posner (2003). 26 actors concerned only to maximize their expected utilities could have decided to create a rule that allows states to intentionally attack civilians provided that they compensate the victim state through monetary payments. If enforceable, a rule like this would force states to internalize the negative externalities of risky military tactics, thereby minimizing civilian deaths. It would certainly be a difficult rule to enforce, but no more so than the existing rules of war. If it were enforced, the expected outcome would be about the same as that of the principle of civilian immunity. However, as I demonstrate empirically, rules like this were never even considered by the designers of the humanitarian protection norms in any civilization.

In my view, the compensation rule was never considered because it violates powerful moral intuitions. Most people have a potent psychological response to the thought of intentionally killing innocent human beings, and such response patterns are not explicable in terms of the potential costs that such actions might entail. To even consider allowing intentional attacks civilians in war would be something of a “taboo.”58

This is because the value that people place on human lives is not the same as the value that they place on material objects like cars or houses; to compare such values is to violate a powerful taboo. Since the universal grammar theory of moral discourse and international norms holds that “arational” psychological predispositions give rise to moral precepts, it can explain why actors do not consider endorsing rules that seem to be entirely “rational” in the expected utility sense of the term. In addition, since this theory does not assume that moral norms are mere coordinating mechanisms, it can better explain why political actors in diverse circumstances tend to adopt humanitarian

58 See Fiske & Tetlock (1997). 27 protection norms. Thus, although rationalism seems to provide an intuitive approach to explaining how humanitarian norms arise, the evidence indicates that the laws of war are not merely a response to collective action problems or expected utility calculations.

For the sake of the reader, I have summarized the problems with existing theories of international norms in Table 1 below:

Table 1: The Limits of Existing Paradigms

Theory Limitations

Materialism Social structures constrain and enable the kinds of norms that can emerge in any society, but no unique structural forces generate humanitarian norms. Constructivism It cannot account for the extent of cross-cultural convergence on similar humanitarian norms. Rationalism Its account of agency cannot account for the design features of the humanitarian protection regime. Moreover, humanitarian norms are often endorsed unilaterally with little consideration given to how other actors will behave.

Potential Objections: Human Nature Arguments and Explaining Disregard for Civilians

The claim that some moral ideas are rooted in the innate cognitive and emotional structures of the mind may provoke a considerable degree of unease. Indeed, in modern social science and IR, there is a strong tendency to downplay the role of human nature in constituting the political and legal structures of social life; at the very least, most scholars leave such arguments to political realists who (over)emphasize the thirst for power and dominance in an anarchic international environment. According to many scholars, there really is no such thing as human nature, and any characteristics that we regard as natural 28 are merely a reflection of reified social structures or ensembles of knowledge and power.

Even on the “thin” models of constructivism put forth by scholars such as Alexander

Wendt, the idea of human nature does not tell us very much about social behavior and it tells us even less about world politics. As Wendt points out,

Much more than other animals, human behavior is underdetermined by our nature, a fact attested to by the remarkable variety of cultural forms we have created. In developing this hypothesis we should not forget that human beings are animals whose material needs are a key constituting element of their interests, but in the end their interests are mostly a function of their ideas, not their genes.59

The aversion to human nature arguments comes forth most clearly in social constructivist scholarship, but it is fairly widespread in IR theory, at least amongst the opponents of classical realism. Oddly enough, however, one of the central claims of this dissertation is that the classical realists were right to use human nature arguments in their analysis of world politics; yet, they were wrong to regard human beings as essentially evil. In my view, human beings are neither essentially good nor essentially bad, and neither are they essentially peaceful or essentially violent. However, they have innate capacities that can lead them toward less violent ways of relating to each other.60

The sources of skepticism toward human nature arguments are various, but the following considerations seem to get at the basic problem. As Wendt notes, social scientists have discovered a striking degree of cross-cultural variability in the world, and it seems that the most plausible explanation for this fact consists in the claim that moral ideas and behavior are constructed through culture, not nature. A reasonable objection to the idea that moral discourse is rooted in facts about human nature is that it will have a

59 Wendt (1999, 133). 60 See Pinker (2011). 29 difficult time accounting for moral variation and change. After all, one cannot explain variation and change with a constant, and if my account of moral discourse is intended to provide a universally applicable template for analyzing how people think about the morality of armed violence, then it will have a difficult time accounting for any major differences between societies and any major normative developments within particular societies. For instance, if the humanitarian protection regime is based upon universal features of the human mind, as I claim that it is, then why did it take so long for human beings to create such a regime? Why did some societies in the past seem to disregard any concern for civilian lives?

In response to these objections, I argue that the universal grammar theory of moral discourse does not force us to neglect the immense degree of cross-cultural variation in the world. In fact, the Chomskyan account of mental structure gives us a useful way of thinking about cross-cultural differences in a way that does not force us to give up on the prospect of explaining cultural universalities. After all, Chomsky’s theory of cognition was initially designed to make sense of the language faculty, and nobody would argue that human languages are exactly the same. They betray an immense level of cross-cultural variation, but Chomsky argued that they are “cast in the same mold.”61

Similarly, although I hypothesize that some moral beliefs and emotions are universal, I do not presume that cultural differences are non-existent. Nevertheless, I claim that without incorporating the more universal aspects of social norms and discourse into our analysis, we cannot even begin to make sense of inter-civilizational continuities. Those

61 Chomsky (2000, 7). 30 moral beliefs and emotions that are universal, I claim, exercise a causal influence on the creation of norms of warfare in culturally variable international systems.

But how do I propose to explain why some societies and individuals seem to disregard the rights of civilians in war? If humanitarian protection norms are fairly universal, then how can we even begin to explain why European imperialists slaughtered indigenous tribes in the “New World,” or why Genghis Khan killed hundreds of thousands of Muslims in his quest to conquer the Middle East? Why did they seem to recognize no constraints on their behavior toward such peoples? Although such questions are difficult to answer in the abstract, I claim that my approach to international norms actually helps us explain cultural variations much better than do the existing approaches. Indeed, I claim that a psychological account of moral discourse is necessary for explaining why some societies endorse, or alternatively fail to endorse, humanitarian protection norms in their relations with other groups. Crucially, I do not presume that actors will always recognize humanitarian protection rules in conflicts with other peoples, but only in particular circumstances—circumstances that, as psychologist Steven Pinker points out, “engage” our mental predispositions toward non-violence.62

As I noted earlier, two basic factors increase the probability that a particular set of social groups will endorse humanitarian protection norms in war. First, the societies in question share social ties that are sufficiently dense that some level of collective identification begins to emerge.63 In order for people to view the members of enemy societies as moral subjects entitled to a modicum of humane treatment, they must share

62 See Pinker (2011, xxiii, 482-670). 63 See Fiske (1991) and Pinker (2011). 31 ties of collective identity that are strong enough to justify restraining the use of military force. In my discussion of early Islamic civilization in Chapter 4, I show how ties of collective identity affected how Muslim jurists talked about the morality of war. While they generally believed that it is wrong to intentionally kill innocent women and children in non-Muslim territories, they placed a higher moral value on the lives of innocent

Muslims, suggesting that ties of collective identity lead to stronger moral restraints.

Similar claims can be made with respect to how medieval Christian theologians viewed intentional attacks on Muslims: women and children could not be intentionally killed, but they could be enslaved.64 More generally, as ties of collective identity become stronger, actors are more inclined to adopt humanitarian protections in their relations with other political entities. While bringing in the idea of collective identity qualifies my claim that humanitarian protection norms are universal, it shows us when these norms are more likely to “kick in.”65

Secondly, in order for people to create rules that protect the victims of warfare, they need to have the material capacity to produce legal institutions in the first place— capacities that only come with a relatively high level of economic development. As I demonstrate below in my discussion of Islam, normative restraints on violence were partly influenced by pre-Islamic social norms, but they were also influenced by the development of Islamic civilization itself. In order for societies to converge on some notion of universal rights, they need to have well-developed legal institutions. This does

64 See Vitoria (1991). 65 The fact that collective identity formation constitutes an important boundary condition on the universal grammar theory of discourse and norms should not detract from the novelty of the argument. Indeed, my claim is that collective identities lead to very similar norms—a claim that still goes against the tide of recent work on norms and discourse in social science and IR. 32 not mean that so-called “pre-modern” societies cannot develop implicit rules for protecting civilians in war, and some evidence suggests that they have. However, I presume that certain material conditions are more conducive to the development of humanitarian protection norms than others. Of course, since my main thesis is about the role of individual moral psychology and human nature in constituting the norms of war, I contend that material conditions do not directly determine the emergence of humanitarian protection norms.

A Roadmap of the Dissertation

This dissertation is organized as follows. In the following chapter, I construct a more detailed outline of the moral grammar theory of discourse and norms. Building on the revolutionary work of Noam Chomsky and his followers in linguistics, moral theory, cognitive science, and anthropology, I argue that the social mind is composed of a distinct set of innate “modules” or faculties that enable people to learn specific behaviors and moral judgments. In Alan Fiske’s view, these modules are “something like the generative grammar of a language that can yield any number of novel but comprehensible utterances. The models resemble a grammar in that people use them without being able to articulate them as a set of explicit rules.”66 In line with this view of discourse and norms, I outline a partial grammar of moral discourse67 that is relevant to the norms of armed conflict and that is responsive to recent research in social psychology and cognitive science. Lastly, I explain why we have reasons to believe that there is such a

66 Fiske (1991, 3). Also, see Mikhail’s discussion of “operative” vs. “express” principles in Mikhail (2000, 101-103). 67 This expression was influenced by Mikhail’s “fragment of a moral grammar,” (2000, 130). 33 thing as a grammar of moral discourse, and I outline a methodology for analyzing the process of norm convergence in anarchic political systems.

To empirically defend my claim that anarchic political systems tend to converge on similar humanitarian protection norms, in Chapters 3-6 I discuss the moral and legal codes that regulated the use of violence in four distinct social systems: (1) Warring States

China; (2) the early Islamic empire; (3) early Western civilization; and (4) modern international society. In Chapters 3-5, I analyze the processes that led to the development of humanitarian protection norms in Warring States China, early Islam, and the early

West respectively, and I show how my account of moral discourse is able to help make sense of the process of norm convergence. My analysis suggests that the kinds of causal factors emphasized by materialism, constructivism, and rationalism are important, but not sufficient, for generating support for humanitarian norms. Moreover, the evidence shows that a psychological account of moral discourse and norms is necessary to explain why political actors converge on such norms.

In Chapter 6, I analyze the development of international humanitarian law in modern international society, focusing primarily on the four most significant conferences that led to the codification of restraints on the use of force: the 1899 and 1907 Hague

Peace Conferences, the 1949 Diplomatic Conference on the Geneva Conventions, and the

1974-1977 Conferences on the Reaffirmation and Development of International

Humanitarian Law. In this chapter, I use primary source evidence to help support the claim that universal mental structures, not just power and self-interest, are important for explaining the creation of the humanitarian protection regime. Taken together with the

34 case studies on Warring States China, early Islam, and early Western civilization, this chapter helps demonstrate my claim that the laws of war are not merely rooted in cultural discourses, material structures, or expected utility calculations. Instead, they are rooted, at least in part, in the universal structure of the mind.

35

Chapter 2: Theoretical Foundations: A Grammar of the Laws of War

In the previous chapter we saw that although existing paradigms call attention to some of the relevant causal factors that lead anarchic political systems to converge on similar normative structures, they fail to consider how human psychology influences the creation of international norms. Structural forces, cultural symbols, and strategic interests are important, but they do not fully explain why actors converge on similar normative structures for restraining armed violence. The most plausible explanation of normative convergence must incorporate the idea that human psychology causally influences the creation of international norms: the only major similarity between people in distinct social circumstances is a similar psychology. Thus, in contrast to existing theoretical paradigms in IR, in this chapter I argue that moral ideas and discursive practices emerge in part out of the universal cognitive and emotional structure of the human mind. I claim that this account of moral discourse is necessary to help explain how political actors in culturally and materially diverse anarchic systems create specific norms for protecting the victims of war.

Building on recent work in moral theory, social psychology, cognitive science, and cultural anthropology, I claim that the grammar of moral discourse is comprised of

36 four innate cognitive schemas, or mental models.68 For convenience, Table 2 on the following page summarizes these cognitive schemas, but later on I describe them in more detail. These mental models are each comprised of a set of finite cognitive precepts that regulate how people respond to moral issues. The Harmful Action model, for instance, is comprised of rules that lead people to place a high moral valence on intentional harms as opposed to unintentional harms, and the Communal Solidarity model is composed of rules that lead people to favor those with whom they share ties of collective identity. My claim is that these fundamental cognitive precepts lead intentional agents to create particular kinds of international norms and institutions, namely those that are consistent with the content of such precepts.

68 See Mikhail (2000), Mikhail (2002), Mikhail (2011), Dwyer (2005), Dwyer (2009), Hauser (2006), Hauser et al. (2007), and Huebner et al. (2008) for a discussion of the “universal moral grammar” hypothesis. For a discussion of the claim that the social mind is composed of four distinct “relational models,” see Fiske (1991). 37

Table 2: The Mental Building Blocks of Moral Discourse69

Mental Model Description

Communal Solidarity This model emphasizes the moral significance of in-group loyalty and cooperation. Harmful Action This model regulates the human cognitive and emotional reaction to physical and mental harm, including the reaction to killing other persons. Fairness This model regulates how people evaluate the distribution of social goods. It does not necessarily imply that social goods and exchanges must be equal, but only that the process and outcome of distributive exchanges must be fair. Social Authority This model emphasizes the moral significance of authoritative social structures, whether hierarchical or egalitarian in form. Positions of authority need not be held by specific persons, but they may also be held by particular social groups.

In the following section, I set out the intellectual context of this theory of moral discourse and international norms by reviewing the relevant literatures in moral theory, social psychology, cognitive science, cultural anthropology, and generative linguistics.

Following this line of thought, I claim that the “Chomskyan” account of the mind provides us with a plausible way of thinking about the micro-level mental structures that influence the process of normative convergence at the macro-level. Just as Wendt claims that the struggle for recognition at the micro-level will, in conjunction with the “logics” of anarchy, inevitably lead to the development of a world state, here I argue that micro- level cognitive structures exert upward pressure on the development of international norms for the regulation of violence.70 Intentional agents brought about the humanitarian

69 This typology of mental models is influenced by the following works: Fiske (1991), Rai & Fiske (2011), Haidt (2001), Haidt & Joseph (2004), Haidt & Joseph (2007), Shweder et al. (1997), and Pinker (2011). 70 See Wendt (2003). In his Social Theory of International Politics, Wendt argues that the need for recognition is a universal feature of human psychology, so my claim about the relationship between 38 protection regime, and their actions were not simply informed by the distribution of material power or cultural knowledge in the international system. In addition, their actions were informed by the grammar of moral discourse—a mental structure of universal ethical precepts. After setting out the intellectual context of this theory of discourse and norms, I explain how it relates to the rule structure and semantic content of the laws of war. Finally, I explain how the grammar of moral discourse interacts with macro-level structural forces to generate support for humanitarian protection norms, and I finish off with an outline of my research methodology.

Intellectual Foundations: A Review of Moral Psychology and Cognitive Science

The account of moral discourse that I defend in this dissertation holds that moral beliefs and emotions are grounded in the universal structure of the human mind. On the one hand, such a claim seems fairly obvious and uncontroversial: as far as we know, human beings are the only animals that engage in moral thinking and discourse.71 Hence, there must be something about the inherent nature of the human mind that makes it conducive to the development of a moral sense. Animals do not seem to concern themselves with the kinds of ethical dilemmas that have plagued moral philosophers and political theorists for centuries, and so there must be some distinct sense in which humans are unique. On the other hand, to say that moral discourse emerges from the universal

individual cognitive structures and the norms of war can be thought of as similar in kind to Wendt’s claim about the relationship between the struggle for recognition and the development of a world state. Though I do not argue that the humanitarian protection regime was inevitable, I do claim that the combination of universal mental structures and particular situational determinants made its development much more likely. 71 Of course, some scholars argue that non-human primates do have something similar to a “moral sense.” See Brosnan & DeWaal (2003). 39 structure of the human mind is extremely controversial, for it suggests that the semantic content of moral claims and the rules that motivate human action do not vary all that significantly across cultures and across time. In spite of the fact that human cultures are characterized by immense differences, such a view of moral discourse suggests that there are likely to be discernible patterns in the moral claims that people make. It suggests that moral universals exist.

Why do we have any reason to believe in the existence of moral universals? In my view, such questions cannot be answered by a priori theorizing, but only through an analysis of empirical facts. If we find a significant continuity in the moral claims that people make across cultures and across history, then we have strong reasons to believe that there are moral universals. In the chapters that follow, I argue that an analysis of moral discourse and the norms of armed conflict across civilizations supports the claim that there are discernible patterns in how people think and talk about the morality of intentional violence. To that extent, my claim about universal patterns of moral discourse is corroborated by an analysis of the empirical evidence. However, to make sense of the empirical evidence, to understand why there are such discernible patterns in moral discourse and the norms of war, we need a theory that can help us organize the evidence.

Otherwise, we have no way of understanding why such patterns emerge. The

Chomskyan account of mental structure, which holds that the human mind is composed of a finite set of “modules,” or innate learning mechanisms, provides us with a compelling framework for organizing and explaining the empirical data. It tells us how the human mind is organized such that people in very dissimilar material and cultural

40 circumstances nevertheless develop very similar ways of thinking about their moral obligations. Before outlining this account of moral discourse in more detail, and before constructing the grammar of the laws of war, I review the relevant tenets of generative linguistics.

As I mentioned in the previous chapter, it should be noted that although I endorse the moral grammar view that other theorists have defended, this dissertation substantially contributes to this line of thought. Indeed, in my view the literature on the generative grammar account of human morality suffers from a paucity of empirical evidence from pre-modern and non-Western cultures, although references to other cultures are often made.72 If we want to determine whether there is a moral faculty, and if we want to determine whether it influences rules of law, we need to look more closely at pre-modern and non-Western sources. In the following chapters, I fill this important gap in the moral grammar literature. Second, while some scholars claim that the moral faculty has an influence on the content of the law, few have attempted to test this psychological account against theories of norms that emphasize other causal forces, including cultural forces, political forces, or sociological forces. I attempt to resolve this problem by testing the moral grammar account of discourse and norms against existing theories of social norms in IR scholarship. I argue that although extant theories call attention to important factors, they need to build upon the moral grammar approach to moral cognition in order to fully explain how civilizations converge on similar norms. Lastly, to my knowledge, few attempts have been made to show how mental structures and processes interact with

72 See Mikhail (2011, xv, 106-110). 41 sociological structures and processes to generate humanitarian protection norms.73

Although my comments on this issue are somewhat preliminary, I attempt to spell out more clearly how sociological structures and mental structures interact to produce the kinds of humanitarian protections we observe in the modern laws of war.

An Excursus on Generative Linguistics

“It must be…that in their essential properties and even down to fine detail, languages are cast in the same mold.”74

-Noam

Chomsky

Human languages and cultures are striking in their variety. Anyone who has attempted to communicate with someone who speaks another language or has stepped foot in an alien culture is all too aware of this self-evident fact. Nevertheless, since the

1950s the study of human language has been dominated by a view that regards some aspects of linguistic knowledge, particularly knowledge of grammar, as universal and innate.75 Not only has this way of thinking had an immense influence on research in the study of language and mind, but it has made important inroads into the study of other cognitive capacities. In recent years it has influenced the way that some philosophers and psychologists think about human morality and sociality, leading some to claim that there

73 However, see Pinker (2011) for thoughts on this issue. 74 Chomsky (2000, 7). 75 See Brown (1991, 42-43, 47, and 113) 42 is such a thing as a universal grammar of moral cognition and discourse.76 In A Theory of

Justice, for instance, philosopher John Rawls makes an argument concerning the relationship between moral and linguistic theory that is worth quoting at length:

Let us assume that each person beyond a certain age and possessed of the requisite intellectual capacity develops a sense of justice under normal social circumstances. We acquire a skill in judging things to be just and unjust, and in supporting these judgments with reasons. Moreover, we ordinarily have some desire to act in accordance with these pronouncements and expect a similar desire on the part of others. Clearly this moral capacity is extraordinarily complex. To see this it suffices to note the potentially infinite number and variety of judgments that we are prepared to make. The fact that we often do not know what to say, and sometimes find our minds unsettled, does not detract from the complexity of the capacity we have.

Now one may think of moral theory at first (and I stress the provisional nature of this view) as the attempt to describe our moral capacity; or, in the present case, one may regard a theory of justice as describing our sense of justice…. A useful comparison here is with the problem of describing our sense of grammaticalness that we have for the sentences of our native language. In this case the aim is to characterize the ability to recognize well-formed sentences by formulating clearly expressed principles which make the same discriminations as the native speaker. This undertaking is known to require theoretical constructions that far outrun the ad hoc precepts of our explicit grammatical knowledge. A similar situation presumably holds in moral theory. There is no reason to assume that our sense of justice can be adequately characterized by familiar common sense precepts, or derived from the more obvious learning principles. A correct account of moral capacities will certainly involve theoretical constructions which go much beyond the norms and standards cited in everyday life; it may eventually require fairly sophisticated mathematics as well.77

To bring out the strengths of the analogy with generative grammar, in this section

I provide an overview of the main ideas of generative linguistics, focusing specifically on its distinctive account of the mind and its significance for understanding the human

76 See Mikhail (2000), Dwyer (2006), Dwyer (1999), Dwyer (2009), Hauser et al. (2007), Huebner et al. (2007), Jackendoff (2007), Mikhail (2002), Mikhail (2007), Mikhail (2010), and Rawls (1971). 77 Rawls (1999 [1971], 41-42). For an excellent analysis of Rawl’s linguistic analogy and its significance for the study of moral cognition, see Mikhail (2000) and Mikhail (2011). 43 language faculty. Since it is beyond the scope of this dissertation to provide an exhaustive review of the development of linguistic theory, I make no attempt to comment on all of the recent developments in the field nor do I consider the significance of the

Chomskyan framework for the cognitive sciences as a whole.78 For our purposes, the most important aspect of generative linguistics lies in its view of the mind as a modular system that is constituted in part by neurologically realized mechanisms in the mind/brain of individual humans.

The study of generative linguistics has been carried on by linguists, philosophers, and cognitive scientists since the early 1950s, but as Chomsky himself points out the main ideas date back to at least the sixteenth century, if not earlier. While additional research and theorizing has led to some refinement, the central ideas have remained fairly constant over time. Taking some risk at oversimplifying the approach, one can think of generative linguistics as centered on an attempt to answer the following question, which

Chomsky refers to as “Plato’s Problem”: how is it possible for individuals to gain an extraordinarily rich and complex knowledge of language given the finite range of experiences to which they are exposed?79 In the early 1950s and 1960s, Chomsky argued that previous approaches to the study of language were inadequate, and this was in large part because they could not convincingly answer this question.

To clarify the problem, consider the following facts. Assuming some degree of normal functioning, all human beings who attain a certain age become competent users of a particular language, whether it is English, Spanish, Russian, or Japanese. At the very

78 For a review of the Chomskyan framework, see Smith (2005), Lasnik (2005), and Jackendoff (2007), Mikhail (2000) and Mikhail (2011). 79 Chomsky (1986). 44 least, this suggests that the neural architecture of the human brain is such that it enables individual persons to learn languages, to engage in abstract thinking, and so on. Since at least the eighteenth century, there have been two basic ways to explain how people are able to acquire linguistic knowledge, i.e. knowledge of the grammatical structure of a particular language: an empiricist view and a rationalist view.80 As empiricists believe that all human knowledge is acquired through sense experience, empiricism implies that linguistic knowledge is acquired through repetitive practices and explicit instruction by the members of a particular language community. On this view, the human mind is a blank slate that only acquires mental content through its engagement with the surrounding environment. The only thing that can be said about the native endowment of the mind is that it possesses a mere capacity to learn languages.81

The problem with empiricism is that it cannot provide a convincing response to

Plato’s Problem, a point that can be made clear by considering Chomsky’s now famous critique of B.F. Skinner’s book, Verbal Behavior. As a founding father of behaviorism,

Skinner claimed that environmental stimulants and behavioral reinforcement regulate verbal behavior and linguistic knowledge. On this view, internal subjective states and individual mental processes play a very minor role in language acquisition and behavior.

In Chomsky’s words,

Skinner’s thesis is that external factors consisting of present stimulation and the history of reinforcement (in particular, the frequency, arrangement, and withholding of reinforcing stimuli) are of overwhelming importance, and that the

80 For more on rationalism and empiricism in Chomsky’s work, see Hornstein (2005). 81 See Fodor (1983, 17). As a side note, these empiricist assumptions about the nature of the mind are very similar to the kinds of assumptions that constructivists, post-modernists, and post-structuralists make about the nature of human knowledge and culture. See Wendt (1999, 130-135), Crawford (2002, 71, 77), and Chomsky & Foucault (2006 [1971]). 45

general principles revealed in laboratory study of these phenomena provide the basis for understanding the complexity of verbal behavior. He confidently and repeatedly voices his claim to have demonstrated that the contribution of the speaker is quite trivial and elementary, and that precise prediction of verbal behavior involves only specification of the few external factors that he has isolated experimentally with lower organisms.82

In a “scathing” critique of this view,83 Chomsky claims that it is not possible to explain linguistic behavior, specifically its variety and its creativity, without bringing in the distinctive contribution of language users.84 The ability to recognize and produce linguistic expressions that far outstrip the kind of information to which people are normally exposed suggests that “there must be fundamental processes at work quite independently from ‘feedback’ from the environment.”85 In short, to explain how people come to have knowledge of language, or knowledge of any other important capacity, we should adopt a “mentalistic” perspective on human capacities—an approach to human psychology that views internal mental states as the primary forces behind individual behavior. For the study of language, Mentalism implies that linguistic capacities are not solely determined by outside forces in the language community: the structure of the mind influences the development of linguistic knowledge.86 For the social sciences, it implies that social capacities, e.g. the capacity to develop ties of collective identity to other people or the capacity to make judgments about the use of violence, are not solely

82 Chomsky (1959, 27-28). 83 Hornstein & Antony (2003, 6). 84 For more on creativity and its relationship to Chomsky’s account of language and human nature, see Chomsky & Foucault (2006 [1971]). 85 Chomsky (1959, 42). 86 See Chomsky (1964, 4). See also Mikhail (2011, 19). 46 determined by external forces in the social environment. It implies that the innate structure of the mind influences the development of social knowledge.87

The line of argument that Chomsky develops against behaviorism helps form the entire basis of his approach to linguistic knowledge, and it also constitutes the basis of the approach to moral discourse that I defend here. Since the concept of “knowledge” that

Chomsky employs is somewhat technical, it will be useful to make a few clarificatory remarks before moving on.88 The best way to clarify his account of linguistic knowledge is to distinguish it from his notion of linguistic performance. In Chomsky’s view, knowledge of language is regarded “as a certain state of the mind/brain, a relatively stable element in transitory mental states once it is attained.”89 Hence, linguistic knowledge is technically distinct from the use of language in everyday life. The use of language, or linguistic performance, is subject to a wide array of contingent factors including culture, politics, emotions, or attention span. When an individual uses language to write, speak, or debate he or she implicitly relies upon a broader structure of linguistic knowledge, but individual utterances or written sentences can be affected by any number of things. The primary objective of generative linguistics is to account for knowledge of language and to explain how such knowledge is acquired.90 Understanding how this knowledge is put to use is a secondary task. As philosopher Susan Dwyer claims, “to study [the language faculty] is to study…[linguistic] competence; that is, the underlying cognition that generates outputs that can be deployed by other systems of the

87 For Chomsky’s views on the social sciences, see Chomsky (2005 [1970], 115). 88 See Mikhail (2011, 17-19). 89 Chomsky (1986, 12). 90 See Chomsky (1986, 3) and Mikhail (2000). 47 mind/brain to produce and comprehend signals, on the one hand, and to realize thought on the other.”91 By implication, knowledge of language should not be conceptualized as a mere ability to use a particular language, be it French, English, or Italian; rather it should be conceptualized as a steady state of the mind/brain. The object of generative linguistics is to understand this state.92

In light of the fact that the Skinnerian approach to language overlooked the contribution of individual mental processes, Chomsky argued that it could not compellingly account for our knowledge of language. According to Chomsky “it is simply not true” to claim that people “learn language only through ‘meticulous care’ on the part of adults who shape their verbal repertoire through careful differential reinforcement.”93 In contrast to behaviorism and empiricism, Chomsky defends a rationalist account of linguistic knowledge which holds that internal mental structures underlie the complex linguistic abilities of children and other people. Empiricism does not provide

any way to account for or even to express the fundamental fact about the normal use of language, namely the speaker’s ability to produce and understand instantly any new sentences that are not similar to those previously heard in any physically defined sense or in terms of any notion of frames or classes of elements, nor associated with those previously heard by condition, nor obtainable from them by any sort of ‘generalization’ known to psychology or philosophy.94

The only way to account for linguistic knowledge is to focus on the internal cognitive structures and mechanisms that underlie complex linguistic abilities. The primary goal of

91 Dwyer (2009, 281). 92 The term “steady state” is intended to refer to the “end” state of a process of linguistic maturity, the state of the mind/brain that one is in when one knows a particular language. 93 Chomsky (1959, 42). 94 Chomsky (1964, 58). 48 generative linguistics, then, is to theoretically characterize the initial state of the language faculty and to explain how individuals use their native endowment to construct particular grammars in response to their interactions with the external environment.

How does all this relate to Chomsky’s view about the existence of a universal grammar? Prior to the Chomskyan revolution, human languages were regarded as externalized objects, or collections of utterances and written statements “out there” in the public domain. On this view, the grammar of a particular language was viewed as a set of rules from which one can precisely deduce all of the available sentences or utterances in the language. The problem with this conceptualization of language is that it is inconsistent with the fact of linguistic creativity: individuals can enumerate an infinite amount of statements that outstrip any rules that one can inductively derive from the available utterances of a public language. Since it is possible to construct an infinite amount of sentences in any language, we cannot view it as an external, publicly available object. Instead, we should regard language as a component of the mind/brain of individuals—we should regard it as an “internal” object, or as “some element in the mind of the person who knows [a] language.”95

…The study of generative grammar shifted the focus of attention from actual or potential behavior to the system of knowledge that underlies the use and understanding of language, and more deeply, to the innate endowment that makes it possible for humans to attain such knowledge. The shift in focus was from….the study of language regarded as an externalized object to the study of the system of knowledge of language attained and internally represented in the mind/brain. A generative grammar is not a set of statements about externalized objects constructed in some manner. Rather, it purports to depict exactly what one knows when one knows a language: that is, what has been learned, as supplemented by innate principles. [Universal Grammar] is a characterization of

95 Chomsky (1986, 22). 49

these innate, biologically determined principles, which constitute one component of the human mind—the language faculty.96

Hence, the linguistic knowledge of a mature individual consists of two basic elements, an intuitive knowledge of the neurologically realized principles of universal grammar and an experientially derived knowledge of the grammar of a particular language.97 We should not regard verbal behavior and discourse as sets of utterances and written texts, but instead we should view them as the products of internal mental processes that associate sounds and words with meanings. In this dissertation I suggest that social scientists should adopt a similar perspective on normative discourse: they should view it as product of internal mental processes, not external social facts.

To sum up, the aim of generative linguistics is to provide a scientific account of the initial state of the language faculty and the process of maturity into the steady state in which an individual gains full knowledge of a particular language.98 To achieve these difficult goals, generative linguistics aims to develop theoretical constructions, or grammars, that are designed to account for the set of possible expressions in a particular language and to explain how each language can be derived from the initial state of the language faculty. In other words, it aims for “descriptive” and “explanatory” adequacy.

A particular grammar is descriptively adequate to the extent that it can provide a “full and accurate” description of a specific language;99 it is explanatorily adequate to the extent that it can “show how each particular language can be derived from a uniform initial state

96 Chomsky (1986, 24). 97 Chomsky (1986, 26). 98 For more on Chomsky’s view of scientific explanation and its relationship to the goals of linguistic theory, see Chomsky (1954, Chapter 6). 99 Chomsky (1986, 53) and Chomsky (2000, 7). 50 under the boundary conditions set by experience.”100 If these objectives can be achieved, an important implication follows: although natural languages vary significantly, the initial state of the language faculty sets constraints on the number and variety of possible human languages. Consequently, despite the immense level of linguistic variation in the world, all “languages are cast in the same mold.”101

The Generative Grammar of Moral Discourse

The picture of the human mind put forth by Chomsky and his colleagues had a significant impact on the development of linguistics and cognitive science in the latter half of the twentieth century, opening new pathways for investigation that were previously ignored or regarded as irrelevant. For our purposes, the most significant aspect of the Chomskyan framework lies in its view of the mind as a modular, computational system that is constituted in part by a native endowment and that is realized in the neural structure of the brains of individual persons. On this “Cartesian” view of the mind, individuals are “born knowing certain facts about the constraints on human languages,” and in response to their experiences with the social and cultural environment they are able to construct mature linguistic grammars.102 In my view, this particular theory of the mind provides a compelling template for the study of moral discourse in IR, one that we can use to account for the emergence of the fundamental norms of the humanitarian protection regime in diverse cultural and material contexts.

100 Chomsky (2000, 7). For a discussion of “descriptive” vs. “explanatory” adequacy and their relation to moral cognition, see Mikhail (2000, 100-101). 101 Chomsky (2000, 7). 102 Fodor (1983, 4). 51

By viewing the mind as a natural object103 endowed with an innate cognitive and emotional structure, IR theorists can begin to shed light on how particular norms emerge and become recognized as legitimate and they can go some way toward explaining the transcultural validity of certain models of legitimate social action.104 The process of constructing social institutions and recognizing certain conventional rules as legitimate is not merely one in which we come to import external standards of behavior into our own patterns of thinking and feeling, but it is also one in which our pre-structured mental dispositions are expressed and refined through our interactions with other persons. As I suggested at the outset, the empirical data in anthropology and social psychology suggests that there are at least four distinct mental models that govern our responses to particular moral and social problems and that these models are, to a large extent, innate, or “organized in advance of experience.”105 These models are outlined above in Table 2.

Although it is beyond the scope of this dissertation project to explore the evolutionary foundations of moral and social cognition, some scholars argue that there are strong reasons to believe that certain aspects of moral and social cognition may have an evolutionary foundation.106 Not only did early humans face a natural environment with scarce material resources, but in addition they faced a social environment that may have favored the ability to make important moral and social judgments, such as the ability to detect and punish cheaters or to detect those with hostile or anti-social intentions. Building on this idea, Jonathan Haidt and Craig Joseph claim that our innate

103 See Mikhail (2000, 16). 104 For more on how to explain the emergence of human universals in anthropology see Brown (1991). 105 Haidt & Joseph (2007, 381). 106 For an excellent starting place in the literature on evolutionary ethics, see Joyce (2006). 52 mental models are similar in kind to cognitive modules, a construct that has been extensively developed in cognitive science.107

A useful set of terms for analyzing the ways in which [moral and social] abilities get built into the mind comes from recent research in the modularity of mental functioning. An evolved cognitive module is a processing system that was designed to handle problems or opportunities that presented themselves for many generations in the ancestral environment of the species. Modules are little bits of input-output programming, ways of enabling fast and automatic responses to specific environmental triggers. In this respect, modules behave very much like what cognitive psychologists call heuristics, or rules of thumb that we often apply to get an approximate solution (and usually intuitively).108

In the rest of this section, I describe the main contours of each of the four innate mental models and I outline the major reasons for endorsing the idea that the mind is innately equipped with a preparedness to apply each of them in the domains of moral and social life. As I demonstrate in more detail below, the Harmful Action model in particular is central for explaining the cognitive and emotional basis of IHL. I finish by explaining how these cognitive structures interact with external structural forces in ways that lead the members of anarchic systems to converge on humanitarian protection norms.

The Four Mental Models of Legitimate Social Action109

Communal Solidarity. Virtually every culture contains a set of positive or negative moral, legal, and social injunctions designed to maintain the integrity of the in- group. As social identity theorists have found, people have a strong propensity to develop feelings of attachment toward members of specific in-groups, even when in-

107 Haidt & Joseph (2004, 60). 108 Haidt & Joseph (2007, 59-60). 109 Here I build directly on the following works: Fiske (1991), Rai & Fiske (2011), Haidt & Joseph (2004), Haidt & Josepht (2007), and Pinker (2011). 53 group/out-group distinctions are based on seemingly minor factors. In everyday social life, there is a strong tendency to identify with distinct groups of people, and in many cultures people have a particularly strong attachment to members of their own clan or family.110 Some scholars even suggest that the propensity to establish relations of communal solidarity with family members, the relationship between mothers and offspring being a prime example, provide the psychological foundations for establishing relationships between more distant family members and strangers, and that communal solidarity is therefore essential for understanding the basis of human morality.111

Communal solidarity is often associated with emotional constructs such as feelings of compassion and loyalty for members of the community, and in some cases it is associated with feelings of suspicion or even hatred toward out-group members.112 With respect to the law of armed conflict, the concern for communal solidarity shows up in the virtually universal tendency to permit the use of force for the purpose of communal self-defense.

Fairness. Evolutionary psychologists have shown that reciprocity has a very powerful evolutionary significance, and as such individuals have a tendency for repaying benefits with benefits and slight for slights.113 The concern for fairness and reciprocity has not only been found in many human societies, but it has likewise been found in non- human primate behavior,114 a fact which indicates that the concern for fairness is not unique to humans and that it may have an evolutionary foundation. When people act in ways that are perceived as unfair, not only do we have a strong tendency to react with

110 Churchland (2011). 111 Churchland (2011, 30). 112 See Haidt & Joseph (2007). 113 Haidt (2001, 826) and Joyce (2006). 114 See Brosnan & De Waal (2003). 54 indignation but we also attempt to rectify the situation by punishing the aggressor or helping the victim.

Social Authority. While the members of liberal societies tend to emphasize the moral significance of individual autonomy, fairness, and harm, they tend to downplay the moral significance of social authority, and as such the idea of social authority not been well explored in models of moral thinking.115 However, in non-liberal cultures the idea of social authority has a much more significant role to play, generating beliefs and emotions that command respect for those who hold positions of authority. In Confucian- influenced societies, for instance, social authority is given pride of place, with respect for elders and social status having a significant impact on how people think about the moral domain.116

Harmful Action. Since the use of armed violence is strongly identified with physical and mental suffering, I expect the Harmful Action model to have the most significant impact on the cross-cultural development of norms of war. In my view, the

Harmful Action model constitutes the universal basis of the norms of international humanitarian law, and as a result my discussion of this model is much more wide-ranging than that of the previous three. Building on the work of John Mikhail, John Darley, and

Thomas Schultz,117 The Harmful Action model has three basic principles, and these are represented in Table 3 below,

115 However, see Haidt (2001), Haidt & Joseph (2004), Haidt & Joseph (2007), Prinz (2007), and Fiske (1991). 116 See Smetana et al. (1987). 117 See Mikhail (2000), Mihail (2007), Mikhail (2011), and Darley & Shultz (1990). See also Hauser et al. (2007). 55

Table 3: The Harmful Action Model118

Principle Description

Principle #1 1. It is not permissible for any moral agent to intentionally inflict physical or mental harm on another moral subject. a. Intentional acts of violence have a higher cognitive and emotional valence than unintentional acts of violence.

Principle #2 2. It is permissible for a moral agent to undertake a course of action that may incidentally lead to the physical or mental suffering of another person. a. In this case, two conditions must be met: (1) the action in question must be necessary to achieve an otherwise justifiable end, and (2) the potential benefit of the action must be sufficient to outweigh the harm imposed on others. b. That is, moral agents must follow a rule of proportionality when otherwise justifiable actions will lead to serious physical or mental harm.

Principle #3 3. It is impermissible to intentionally kill innocent moral subjects. c. “Innocent” moral subjects do not exhibit an intention to violate important social norms nor are they responsible for posing a threat to the lives of others. d. When a moral subject exhibits the intention to violate important social norms (e.g. those that sanction killing), he or she thereby loses his or her status as innocent.

The principles of the Harmful Action model have been derived inductively from social psychological research on moral cognition and development. In particular, social psychologists have discovered that there are four basic concepts for analyzing how people evaluate the infliction of harm: causation, intentional/un-intentional actions, foreseen/unforeseen consequences, and responsibility. The most basic category that we use to evaluate the moral qualities of a particular action is whether or not the actions of a

118 My construction of this model, specifically principles 1 & 2, was influenced by Mikhail (2000), Mikhail (2007), Hauser et al. (2007), and Darley & Shultz (1990). 56 particular agent caused the harm or suffering in question. According to psychologists

John Darley and Thomas Schultz, “the first major judgment to be made [about a particular action] concerns the causation of the harm,” and there is “strong evidence that adults use necessary conditions in judging the causation of harm.”119 With respect to physical suffering and harm, one cannot generally be held responsible for a bad outcome unless his or her action was somehow causally necessary for the outcome to occur.

When it comes to the distinction between intentional actions and unintentional actions, the evidence overwhelmingly indicates that people tend to place a higher moral valence on harms that are intentionally inflicted as opposed to harms that are merely unintentional or accidental and that the ability to make this distinction emerges quite early in the socialization process, although the exact point in time is subject to debate.

When an individual intentionally causes harm or suffering, it is not merely the case that they are causally responsible for producing the action that leads to the bad outcome, but in addition they specifically plan to bring it about.120 Generally speaking, people are “not held morally responsible for harm[s] caused accidentally…., involuntarily, or without foresight of the resulting harm.”121 If an individual unintentionally causes harm, but the harm in question was a foreseen side effect of an otherwise voluntary action, it is generally claimed that although the action may be regrettable it is morally permissible.

However, actions that cause foreseen harms are generally taken to be more serious than actions that cause unforeseen harms. Even though an unintentional action that causes a foreseen harm is taken to be morally permissible, such an action is regarded as more

119 Darley & Schutz (1990, 531). 120 Darley & Schultz (1990, 533). 121 Darley & Schultz (1990, 532). 57 problematic than one that brings about a harm that could not have been predicted with the relevant evidence at the time. According to Darley & Schultz, “7-year-olds (but not 6- year olds) punished intentional harm more than unintentional-but-foreseeable harm and the latter more than accidental harm…. Foreseeable harm is judged to be worse than un- foreseen harm by 3-year-olds and by 7-year-olds.”122 Nevertheless, intentional harms that are brought about in conditions of duress or necessity tend to receive a much less significant criticism or punishment than actions that are freely or voluntarily implemented.123

As they relate to the development of contemporary international humanitarian law, I argue that these empirical findings are essential for understanding the psychological basis of the norms of civilian immunity and the restrictions on producing unnecessary suffering. People tend to have a potent cognitive and emotional reaction toward individuals who kill civilians in war, and they save their most severe moral condemnation for those who intentionally seek to kill civilians or who fail to take proper precautions to make sure that their lives are spared.124 The public responses to the slaughter of innocent civilians at My Lai in Vietnam and in the former Yugoslavia are vivid cases in point. Nevertheless, the general moral reaction that people have to the killing of civilians does not imply that they regard all actions that pose a threat to the lives of civilians as impermissible or guilt worthy. In situations of extreme duress or necessity, we tend to excuse such actions as long as they lead to legitimate military ends

122 Darley & Schultz (1990, 535). See also, Mikhail (2007), Hauser et al. (2007), and Pellizoni et al. (2010). 123 Darley & Schultz (1990, 533-534). 124 For a discussion of civilian immunity in war, see Walzer (1977), McMahan (2009), Rawls (1999), Primoratz (2007). 58 and as long as their potential moral costs are not extreme.125 While the legal norms associated with civilian immunity may be relatively recent innovations in IHL, they are tied to this much more comprehensive model of moral and social cognition. I hypothesize that when political actors use concepts such as “civilian immunity,”

“innocence,” or “military necessity,” they are unconsciously applying the basic moral rules stipulated in Table 3 to the domain of IHL.

Is There a Grammar of Moral Discourse?

Why should we accept the idea that the mind is innately equipped with these four mental models of social knowledge? In the empirical chapters that follow I provide textual evidence in support of the idea that some ethical precepts are indeed universal (at least for the cases under investigation) and that these precepts causally influence the structure and content of the norms of war. Here I review the evidence in social psychology and cognitive science that supports the claim that some moral precepts are rooted in the innate structure of the human mind. In general, I suggest that the modular account of moral discourse helps make sense of three important facts about the cognitive psychology of moral and social judgments: (1) individuals have the mental capacity to pass ethical and social judgments on a seemingly infinite variety of social actions and institutions,126 (2) moral judgments are largely based on quick, intuitive reactions to

125 For a discussion of the relationship between these aspects of moral psychology and international law, specifically the Rome Statute, see Mikhail (2002, 1107). 126 See Jackendoff (2007) and Mikhail (2000). 59 actions and institutions, rather than explicit chains of moral reasoning,127 and (3) the ability to recognize morally relevant distinctions emerges very early in life, which implies that this ability is not based on cultural factors alone.128 I consider each of these points in turn.

To begin, recall Chomsky’s reason for endorsing the idea that knowledge of language must be underwritten by a complex mental architecture of grammatical rules.

In the words of Ray Jackendoff

Since the number of possible utterances of a human language is unlimited, language users cannot store all of them in their heads. Rather, knowledge of language requires two components. One is a finite list of structural elements that are available to be combined. This list is traditionally called the “lexicon,” and its elements are called “lexical items”…. The other component is a finite set of combinatorial principles, or a grammar. To the extent that speakers of a language (or a dialect) are consistent with one another, we can speak of the “grammar of the language” as a useful approximation to what all its speakers have in common.129

In the case of moral judgment, the argument is that it would be difficult to understand how it is possible for individual human beings to make the range and variety of judgments that they are “prepared to make” without positing that there is a similar kind of complex mental architecture that underwrites them.130 This suggests that moral knowledge is constituted by a finite set of mental models that are used by individuals to make a wide array of judgments with respect to particular actions and social institutions.

Consequently, this provides an intuitively plausible reason to believe that the infinite variety and the distinct kinds of judgments that people are prepared to make is

127 See Jackendoff (2007), Mikhail (2000), Dwyer (2006), Dwyer (2009), Hauser et al. (2007), Haidt (2000), Haidt & Joseph (2004), and Haidt & Joseph (2007). 128 See Fiske (1991) and Mikhail (2011, 104-106). 129 Jackendoff (2002, 39). 130 Rawls (1999 [1971], 41-42). For commentary on this, see Mikhail (2000, 51). 60 underwritten by a mental architecture that can be characterized by reference to the four models of legitimate social action.

Not only does the hypothesis that individuals use a finite set of innate cognitive models to evaluate social actions help to make sense of our ability to pass judgment on a wide range of actions and institutions, but it is also consistent with an important finding in the social psychology of moral judgment. In contrast to the work of developmental psychologists such as Lawrence Kohlberg and Jean Piaget who emphasized the role of explicit patterns of reasoning and deliberation in the exercise of moral judgment, a number of recent studies show that in many cases individual moral appraisals are driven by quick, intuitive reactions. The idea that some, though certainly not all, of our moral judgments are the result of unconscious intuitive processes rather than an explicit deduction from abstract principles is corroborated by studies of what Jonathan Haidt refers to as “moral dumbfounding.” According to Haidt and his colleagues, when research subjects are asked to provide an explanation of their moral response patterns to particular hypothetical actions, they are typically unable to explain why they take the action to be morally permissible or impermissible. As these findings have been confirmed by a number of experiments, most psychologists argue that moral appraisals are often the result of intuitive processes rather than effortful patterns of explicit deductive reasoning from abstract principles.131 Since the four mental models “resemble

131 Some proponents of the generative grammar model of moral cognition claim that these intuitive reactions are driven solely by innate principles. See Huebner et al. (2007). In my view the evidence for this claim is not so clear cut. As Jonathan Haidt claims, much of the evidence supports the claim that our intuitive reactions are driven by emotions; as a result, I assume along with Haidt and others (e.g. Fiske (1991)) that the innate mental models of human moral and social judgment have a strong connection to the emotions. 61 a grammar in that people use them without generally being able to articulate them as a set of explicit rules,” we can make sense of the fact that our moral reactions are often the result of intuition rather than explicit chains of deductive reasoning.132

Lastly, the idea that these four cognitive models are innate and cross-culturally valid allows us to account for the fact that the judgments associated with them tend to

“spontaneously emerge” in the normal course of ontogenetic development and that they have variants in most cultures.133 As Chomsky suggested in the case of language, the social and cultural environment does not contain a sufficient amount of information to enable people to make the range and variety of judgments that they are prepared to make about linguistic utterances: the stimuli in the cultural-linguistic environment is impoverished. In the case of moral and social cognition, the range and quality of moral and social judgments that people are able to make, not to mention the range of feelings that they can experience very early in the process of ontogenetic development, is difficult to square with the blank slate picture of the mind that many social scientists adopt.134 As

Yale psychologist Paul Bloom argues

One lesson from the study of artificial intelligence (and from cognitive science more generally) is that an empty head learns nothing: a system that is capable of rapidly absorbing information needs to have some prewired understanding of what to pay attention to and what generalizations to make.135

Building on this intuition, in the rest of this section I review empirical evidence in social psychology that supports the idea that although the human mind is malleable enough to

132 Fiske (1991, 3). 133 Fiske (1991, 405). However, extant work on the moral grammar hypothesis has not sufficiently examined moral norms in pre-modern or non-Western cultures, which is a gap that I fill in this dissertation. 134 See Fiske (1991) and Rai & Fiske (2011). 135 Bloom (2010, 4). Also see McNamara (1991). 62 adapt to distinct ecological and social environments, it is equipped with an intuitive grasp of particular moral injunctions, specifically those associated with the Harmful Action model above. The empirical evidence is clustered into two basic components: (1) evidence suggesting that people have the capacity to make important social judgments from a very early age, and (2) evidence suggesting that the models of legitimate social action emerge in diverse cultural environments.136

Before moving on, an important concern needs to be addressed. Perhaps one might argue that empirical data on the development of moral and social knowledge is irrelevant for understanding the normative basis of international legal institutions. After all, the political actors who create international legal institutions are fully developed human beings with a mature moral sense. However, if individual moral knowledge is in some sense “organized in advance of experience” as the empirical data suggests,137 and if some moral precepts are recognized by the members of distinct cultures, then it seems plausible to suppose that these precepts will influence the creation of international legal institutions. Consequently, empirical data on the development of moral and social knowledge is relevant for understanding the normative basis of international legal institutions: it provides evidential support for the claim that some aspects of moral and social cognition are innate and universal.

In set of recent studies it has been discovered that the capacity for “social evaluation” emerges much “earlier than previously thought,” and that very young children are able to make certain kinds of morally relevant distinctions, and that these

136 For more on the idea of spontaneous generation, see Fiske (1991, 381-408). 137 Haidt & Joseph (2007, 374). 63 capacities form the basis for social learning later in life.138 Not only do young children have the capacity to recognize that humans or other intentional agents are qualitatively distinct from material objects,139 but in addition it has been shown that they have the elementary capacity to attribute positive or negative intentions toward others. In one study, five to twelve month old research subjects were shown videos “depicting two objects (a square and a triangle), one engaging in helping behavior toward a third object

(a ball) that attempted to climb a hill.”140 After being habituated to the helping or hindering behavior in the first video, they were subsequently shown a video in which the ball approaches the helping object (either the square or the triangle depending on which video was shown) or a video in which the ball approaches the hindering object (once again, either the square or the triangle). It was discovered that the research subjects looked longer at the video in which the ball approached the helping object versus the video in which it approached the hindering object, which leads to the conclusion that

“infants preferred the test movie in which the ball approached the object that had previously helped it reach the top of the hill.”141

In another study, infants were shown a similar video in which a climbing character was either helped or hindered by another character, and they were subsequently

“presented with a plate on which sat the helper or the hinderer characters” along with a neutral object.142 When given the choice between selecting a helper versus a neutral character, the infants “systematically chose the helper,” and when given the choice

138 Hamlin et al. (2007), Bloom (2008), and Hamlin (2007). 139 Wynn (2007, 336-339). 140 Kuhlmeier et al. (2003, 402). 141 Kuhlmeier et al. (2003, 405). 142 Wynn (2007, 344). 64 between selecting a neutral character or a hindering character, they likewise chose the neutral character.143 These results are important for two main reasons: (1) they indicate that preverbal infants have an innate capacity to attribute mental states (e.g. goals, intentions, desires, etc.) to others in their social environment, and (2) they indicate that they have an elementary capacity to attribute positive or negative intentions to other people. In additional work, it has been shown that children will exhibit signs of punishing less cooperative or “mean” characters, which shows that there are powerful innate tendencies toward negatively evaluating people who exhibit anti-social intentions.144

Infants’ preference for the helper and aversion to the hinderer…are best explained as specifically social evaluations: a liking for those who act cooperatively to facilitate the goals of others, and a dislike of those who impede another’s goals….

The presence of social evaluation so early in infancy suggests that assessing individuals by the nature of their interactions with others is so central to processing the social world, both evolutionarily and developmentally. The capacity for such evaluations can be seen as a biological adaptation: cooperative behavior such as group hunting, food sharing, and warfare can be beneficial to individual members of a group, but can only successfully evolve if individuals can distinguish free riders from cooperators or “reciprocators,” those willing to do their fair share. Our findings suggest that preverbal infants may be sensitive to this distinction.

The capacity to evaluate individuals by their social actions may also serve as a foundation for developing a system of moral cognition. Plainly, many aspects of a full-fledged moral system are beyond the grasp of the preverbal infant. Yet the ability to judge differentially those who perform positive and negative social acts may form an essential basis for any system that will eventually contain more abstract concepts of right and wrong.145

143 Hamlin et al. (2007, 558). 144 Bloom (2010). 145 Hamlin et al. (2007, 558-559). 65

This elementary social capacity, i.e. to recognize and to evaluate individual intentions, is at the crux of the civilian protection regime. The principle of distinction holds that states are not permitted to intentionally attack non-combatants unless they rise up in arms against soldiers, in which case they lose their non-combatant status. This rule depends upon the idea that it is only permissible to harm individuals or groups who pose a threat to others or who have violated an important ethical precept. The research on preverbal infants shows that the capacity to recognize and evaluate the intentions of others, and to view pro-social intentions in positive light and anti-social intentions in a negative one, cannot have been derived from cultural indoctrination. More speculatively, one might argue that the ability to read and evaluate the intentions of other people has a basis in evolution and that a predisposition to protect those who do not exhibit hostile intentions or those who seem particularly vulnerable is entirely natural. The social capacities associated with intention-understanding and intention-evaluation may have been necessary for solidifying social ties in the ancestral environment.146 It is little wonder, then, that such capacities may have implications for the norms that political actors create to fight their wars. If people have a cognitive and emotional disposition to recognize and punish anti-social behaviors and to reward pro-social behaviors, then civilian protection norms that “reward” docility and “punish” hostility has a likely basis in elementary mental structures.

But the civilian protection regime does not simply prohibit intentional attacks on civilians; it also permits incidental civilian deaths just in case they comply with a rule of proportionality. It turns out that this rule, which prohibits intentional harms but permits

146 See Rai & Fiske (2001, 59), Fiske (1991, 195-199), Haidt & Joseph (2007), and Joyce (2006). 66 unintentional ones as long as a utilitarian rule of proportionality is followed, is likewise consistent with research on the development of moral cognition. As suggested earlier, when it comes to intentional harms, people overwhelmingly tend to place a higher moral valence on harms that are intentionally inflicted as opposed to harms that are merely unintentional or accidental, and these findings are confirmed in both children and adults.147 Moreover, when people act in ways that produce unintended harms, they tend to evaluate such actions in terms of just how harmful they were; in other words, they use a utilitarian rule of proportionality.148

In one study, subjects were asked to consider two different dilemmas: a trolley dilemma and a footbridge dilemma. In the trolley dilemma, a speeding train is on a track that has five innocent people on it, and by flipping a switch one can divert it onto another track that contains only one person. When research subjects, some of whom were as young as four-years-old, were asked what should be done, most claimed that the train should be diverted, thus saving five people and sacrificing one person—a classically utilitarian judgment. In the footbridge dilemma, a speeding train is on a track that contains five innocent people and pushing one person on the track is the only way to stop it. Interestingly enough, when asked what should be done in this case, most research subjects claim that it would be wrong the push the person off the bridge, which is a judgment that violates utilitarianism.149

147 Darley & Schultz (1990, 531). 148 See Pellizzoni et al. (2010) and Mikhail (2007). 149 Pellizoni et al. (2010). For a discussion of these cases using neuro-imaging data, see Greene (2005) and (2008). 67

A plausible interpretation of the data is that whereas in the second case, i.e. the footbridge dilemma, people have an inhibition toward harming some as a means to help others, i.e. throwing the guy off the bridge, in the first case they do not frame the choice as one of harming one person to save others. The person dies as a foreseen side effect of an otherwise justifiable action, i.e. flipping a switch. In any case, the dominant response is to judge the action in accordance with the degree of harm that was inflicted, to weigh the moral benefits against the moral costs. This is precisely what the rule of proportionality requires of military commanders in war. Coupled with the empirical research reviewed earlier that suggests that people tend to place a higher moral valence on intentional rather than unintentional harms, the empirical data supports the idea that the mental models of moral and social cognition, particularly the Harmful Action Model in Tables 2 and 3, spontaneously emerge very early in human ontogeny.

While much of the empirical social psychological work on moral development is conducted with American children, some studies indicate that the propensity to condemn harmful behavior transcends cultural boundaries. Empirical research on American children shows that they tend to make a distinction between social actions and transgressions that are moral and those that are strictly conventional. According to Elliot

Turiel, whereas the moral domain comprises prescriptions that are thought to be obligatory, universal, and context independent, the conventional domain is “determined by the social system, and institutionalized practice does constitute one of the grounds for adherence to conventions.”150 When asked to evaluate actions such as hitting another child or stealing, research subjects tend to claim that they are seriously impermissible

150 Turiel (1983, 37). 68 even “in the absence of a rule.”151 In contrast, when children are asked to evaluate actions such as “not saying grace before snack” or “not hanging one’s coat in the designated space,” they routinely judge them to be permissible in the absence of explicit social rules.152

Cross-cultural research on Korean children suggests that they make similar distinctions between moral transgressions and social-conventional transgressions.153 In spite of the evident cultural differences between the United States and Korea, Smetana et al. (1987) found that Korean children are just as likely to regard moral transgressions such as hitting or stealing as serious offenses that cannot be regarded as permissible even in the absence of an explicit social convention. When asked to provide a justification explaining why they thought a particular action was impermissible, they tended to talk about moral transgressions “in terms of” individual “welfare, obligation, and fairness.”154

These findings strongly suggest that individuals in diverse cultural settings use similar kinds of considerations when judging the permissibility and impermissibility of harmful social actions, and that the ability to use moral norms emerges very early in life in cultures with unique cultural traditions.

In sum, the empirical data supports the idea that people have an innate mental capacity to make complex moral and social judgments. As in the case of language, if we do not presuppose that moral and social capacities have a substantial innate component, it would be difficult to explain how such capacities arise in the first place: the amount of

151 Smetana (1981, 1335). 152 Smetana (1981, 1335-1336). 153 Smetana et al. (1987). 154 Smetana et al. (1987, 580-581). 69 necessary information in the social environment is impoverished in the sense that people could not possibly converge upon the judgments that they in fact converge upon without some kind of internal pre-wiring. More specifically, the evidence suggests that people have an innate cognitive and emotional capacity to detect and evaluate malicious intentions in others and to place a higher moral valence on intentional harms as opposed to unintentional harms. With respect to harms that are accidental or merely foreseen, yet not intended, people tend to claim that they should be judged in accord with a utilitarian- style rule of proportionality. In line with other proponents of the moral grammar account of human morality, my contention is that these rules constitute part of the grammar of moral discourse, and for the sake of the reader they are represented above in Table 2.155 It should be noted that the rules set forth in Table 2 do not represent an exhaustive grammar of moral discourse, but only those rules that are important for understanding the trans- cultural validity of the humanitarian protection regime. Rules concerning how people evaluate the distribution of wealth and social justice more generally are one potential avenue of research for IR scholars, in particular those who study international political economy.

Structural Conditions, Collective Identities, and the Laws of War

One might argue that insofar as my account of moral discourse has any universalistic pretentions, it will inevitably have a difficult time accounting for the historical development of the laws of war. Even the most charitable assessment of the framework outlined in the previous sections would conclude that it must provide us with

155 See Mikhail (2011) and Hauser et al. (2007). 70 a theoretically motivated way of addressing the vast normative gulf that separates the contemporary humanitarian regime from the diffuse and relatively weak “laws” of war that existed in the late nineteenth and early twentieth centuries. In addition, some groups throughout history seem to have had very few normative restraints on the use of force, much less any concept or principle of civilian immunity. The Vikings were well known and widely feared for their brutal and in some cases exceedingly grotesque strategies and tactics,156 and Native American tribes such as the Comanches seem to have entertained few concerns about killing civilians in wars with rival tribes or in wars with European colonists.157 The standard constructivist view that changes in the distribution of cultural knowledge alter the dominant practices in any social system seems to explain the variation here, so why revise it?

As I demonstrate in the following chapters, anarchic political systems tend to converge on similar norms of war, and they do so regardless of cultural peculiarities.

Yet, it is difficult to see how this fact squares with major variations in ethical rules and ritual practices of war across cultures and civilizations. How do I propose to deal with this problem? First, the claim about the universal grammar of moral discourse does not imply that all anarchic systems will have the exact same rules of war. Although there is evidence of continuity across cultures, I am not arguing that there are no important variations. My claim is that elementary cognitive precepts causally influence the emergence of similar norms of war, not that they determine them. Second, since all

156 See Halsall (1992). 157 See Gwynne (2010). This is not to suggest that the Comanches were unique in this regard. Indeed, racist white settlers and US officials, including Theodore Roosevelt, were often quite enthusiastic about the prospect of killing Indians. See Kinsella (2011). 71 social actors are embedded in a particular structural context, to fully explain how a social system converges on certain norms, we need to incorporate structural and psychological factors. In other words, mental structures and ecological forces interact to produce macro-level social outcomes. Perhaps one might argue that this leaves all of the important explanatory work to structural forces, but this misses the point. Structures shape and constrain social action, and in some cases they constitute the preferences of intentional actors.158 But mental structures determine how people respond to their social environment, and how people go about changing their environment when the need arises.

What kinds of structural forces lead to the development of humanitarian protection norms, and how do these forces interact with psychological capacities? To answer this question, consider how a particular actor, “Ego,” must perceive its relationship with another actor, “Alter,” such that he recognizes normative constraints on how to treat Alter.159 At the very least, Ego must perceive Alter as having a common moral identity. He must view Alter as a “moral subject” with legitimate needs and interests—needs and interests that constrain how other moral subjects can treat Alter. If

Ego views Alter as less-than-fully-human, then he will be more inclined to refrain from treating Alter as an equal person whose moral status commands respect. Depending on the situation, however, the universal capacity for empathy can trigger an increase in collective identification between Ego and Alter. The capacity for empathy and the structural forces that trigger its expression in everyday social life can influence how

158 See Waltz (1979) and Wendt (1999). 159 See Wendt (1999, 326-336). 72 people define the bounds of moral subjectivity.160 When the Spanish conquered South

America, they viewed indigenous people as savages who were in dire need of civilization. Over time, however, some started to view Indians as moral subjects who cannot be dispossessed or killed at the whims of Europeans, and so it is plausible to conclude that at some minimal level a notion of collective moral identity began to emerge.161

Structural forces that increase the likelihood that two or more groups of people will form overarching collective identities will increase the likelihood that they recognize restraints on how they can treat each other in the midst of war. Even though collective identities do not necessarily decrease the chances that two peoples will go to war, they do imply that such people will recognize more restraints on how others can be treated on the battlefield. In order for Ego to perceive a moral need to refrain from killing Alter’s civilians, Ego must recognize these civilians as moral subjects worthy of respect. This does not mean that Ego will never target Alter’s civilians in war, for as some political scientists have shown compliance with civilian protection rules is not as high as one might hope.162 But it does mean that Ego will regard such behavior as morally binding.

Following Alexander Wendt, I suggest that collective identities are more likely to emerge when the interests of actors are interdependent and when people share a common fate.163

This claim is fairly abstract, but therein lays its virtue: any structural forces that make actor interests interdependent or that force people to confront a common fate will thereby

160 Pinker (2011) and Fiske (1991). 161 See Crawford (2002, 157). 162 See Downes (2008). 163 See Wendt (1999, 343-353). 73 force them to recognize the moral subjectivity of the Other. And although such forces are important for increasing collective identities between political actors, my claim about the grammar of moral discourse is important because it tells us something about the content of the moral restraints that people are likely to recognize in their relations with other moral subjects.

Second, I argue that humanitarian protection norms are more likely to emerge in societies that are materially advanced, both economically and politically. This does not mean that modern societies are more “civilized” in the pejorative sense of the term, or that hunter and gatherer and nomadic societies did not recognize restraints on armed violence. Indeed, as I argue in Chapter 4, the non-combatant protection norm in early

Islamic society was most likely a holdover from the pre-Islamic norms of Bedouin warfare on the Arabian Peninsula.164 But it does mean that political, economic, and legal developments are important for the evolution of the norms of war. In my view, such developments are important for two basic reasons. First off, major economic and political developments lead to complex divisions of labor in almost any society. With respect to war and violence, economic and political developments tend to lead to specialized bureaucracies and armed forces that deal with the defense of the community.

In earlier societies, e.g. Bedouin tribal societies in pre-Islamic Arabia, most people, with the important exception of women and children, were viewed as potentially hostile. This may have been a simple recognition of the fact that they were potential combatants. In complex societies that have a division of labor between combatants and non-combatants,

164 Donner (1991, 34). 74 however, there should be a greater likelihood that people will extend humanitarian protections to more individuals, not just women and children.

Secondly, economic and political developments are necessary for the emergence of complex legal structures, both domestic and international. As discussed below in

Chapter 4, the most highly developed legal institutions in pre-Islamic Arabia emerged in locations that were the most agriculturally productive.165 High economic productivity frees up labor so that more people can devote their lives to specializing in legal and administrative pursuits, both of which are necessary for the development of the laws of war. With a few important exceptions, most of the individuals who composed the philosophical, legal, military, and other treatises and documents that I use as evidence for this dissertation were somehow connected to administrative or legal services. Hugo

Grotius, international lawyer extraordinaire, comes to mind, as does the prominent

Islamic jurist al-Shaybani and the many nameless military commanders and bureaucrats who authored the major philosophical treatises of Warring States China. What distinguishes these societies from pre-modern ones is that they have institutions devoted to administering laws. How is all this relevant for the emergence of humanitarian protection norms? While the development of legal institutions is not sufficient for the development of humanitarian protections, it is necessary. Societies will only cultivate complex legal structures such as the humanitarian protection regime if they have the economic and political resources to do so, and this requires a certain level of development.

165 Donner (1981, 39). 75

Since structural variations produce changes in the norms of warfare, does this imply that psychological factors are irrelevant? No. Structural forces shape and constrain social action, but they do not rigidly determine how individuals think about or respond to moral problems. They may shape how actors define their interests, e.g. powerful states are less inclined to adopt social rules that may conflict with their military objectives, but it is extraordinarily difficult to derive one’s deep moral beliefs from one’s position in a social structure. When people create international norms or when they write about the morality of armed violence, rarely do they think in terms of social structures.

Instead, they make intuitive judgments about what is permissible or impermissible, and these judgments are informed by the grammar of moral discourse.

Considerations on Method

To evaluate the hypothesis that there is a shared grammar of moral discourse that exerts causal pressure on the development of the norms of war, I employ discourse- analytic methods. More specifically, I shoot for two basic objectives: (1) to show that there is a grammar of moral discourse; and (2) to show that this grammar causally influences the emergence of humanitarian protection ideas and norms. To justify these two claims, I need to show that people in different cultures that are widely separated in time and space think similarly about the nature of morality, particularly the morality of inflicting harms on others, and I need to show that such moral beliefs influence the semantic content of the norms of war. Since part of my goal is to tap into shared meanings, I conduct a discourse analysis of the major philosophical, legal, and military

76 treatises in four culturally distinctive anarchic systems: Warring States China, the early

Islamic empire, early medieval Europe, and modern international society.

As cultural psychologists Richard Shweder and Nancy Much point out, one of the main objectives of discourse analysis is to develop a coherent account of what individual utterances and textual items mean: “since speakers always mean and convey more than they say, meaning is revealed by making explicit the relationship between the said and the unsaid.”166 My hypothesis is that some of the implicit rules and meanings that underlie everyday moral discourse are universally shared and that they are derivable from a finite set of elementary mental models and precepts. Thus, my objective in using discourse-analytic methods to uncover shared meanings is not simply to develop a coherent interpretation of culturally-specific meanings, but rather it is to defend the claim that some moral ideas are innate and universal and that they influence the creation of humanitarian protection norms.

Consequently, it should be noted that even though I explicitly use discourse- analytic methods to provide evidential support for my argument, I diverge significantly from the standard ontological presuppositions of discourse analysis. Most significantly, I do not take it for granted that discursive practices are simply external, mind-independent social facts; instead, I hypothesize that discursive structures have a basis in the innate structure of the human mind. My guess is that most discourse analysts will view such claims with extreme skepticism or anathema, but so be it. The presumed ontology of social discourse analysis is far too holistic in the sense that it simply presumes without argument that the meanings of individual utterances or written texts are determined solely

166 Shweder & Much (1991, 186). 77 by shared structures of cultural knowledge. To be sure, meanings are not (entirely) in the head, but they are not wholly autonomous from the structure of the mind. One implication of this dissertation project is that social scientists who use discourse analytic methods can learn important things about moral discourse by viewing it as an element of the mind, just as linguists learned much about human languages by viewing them as mental phenomena.

In any case, in the next several chapters I use discourse analytic methods to defend the claim that in spite of the vast degree of normative space that separates the members of modern international society from Warring States China and early Islam, there is an “overlapping consensus” on certain humanitarian protection norms.167 In particular, I analyze moral discourse as it is reflected in sacred texts, works of political and military theory, archival records, and notes on diplomatic conferences. My case studies were chosen on the basis of two main factors. First, to evaluate the claim that some precepts and norms are universally recognized, I had to maximize the amount of cultural variation subject to time constraints on research. Second, I chose cases that would provide the most stringent tests of the theory. For instance, since there were no social contacts between people in Warring States China and people in Western Europe, analyzing the norms of war in these cases provides a strong test of my argument.

In each of these cases, I conduct a discourse analysis of the moral and political ideologies that relate to the exercise of intentional harms and the use of military violence.

Since I claim that a shared grammar of discourse at the micro-level generates macro-level regularities in the norms of armed violence, I first conducted a general discourse analysis

167 Rawls (1999). 78 on how political and moral theorists in these international systems thought about the moral aspects of intentional harm (e.g. murder, capital punishment, etc.). Since killing civilians in war involves imposing harm on others, I presume that the general ways in which people think and talk about imposing harms on others in different cultures should influence how they think and talk about the norms of war and peace. If my central claim is wrong, we should either observe differences in how people think about the morality of intentional harms in these four distinct cultural systems, or we should observe traceable differences in how they think about the ethics of intentional harming vs. the ethics of killing civilians in war.

Since it is not possible to quantify discursive meanings, it is not possible to represent the results of my discourse analysis in the manner with which many social scientists are acquainted. The goal of discourse analysis is to reconstruct latent structures of meaning from manifest utterances and texts, and so it is difficult to show direct lines of causation one way or the other by using such a method. Moreover, it is difficult to figure out whether any observed similarities in textual sources are the result of pure chance or whether they are truly the result of similar mental structures. Keeping these limitations firmly in mind, in order to evaluate my claim I sought to find as much disconfirming evidence as possible. That is, I aimed to show that the moral precepts on intentional harms that I derived inductively from existing psychological research do not emerge in the moral ideologies that were hegemonic in Warring States China, early Islam, early

Europe, and modern international society. Comparing disconfirming pieces of evidence with the confirming evidence should provide a more confident assessment of the extent to

79 which there is such a thing as a shared grammar of moral discourse and the extent to which this shared grammar influences the development of humanitarian protection norms.

If the claim about innate moral ideas is correct, I argue that we should expect most anarchic systems, subject to the boundary conditions set forth in the preceding section, to exhibit the following kinds of social norms:

1. Norms that permit the use of organized violence for the purpose of communal

self-defense.

2. Norms that regulate the intentional infliction of harms against moral subjects.

3. Norms that prohibit the intentional infliction of harms against non-hostile moral

subjects.

4. Norms that require military commanders and soldiers to follow a rule of

proportionality in implementing military strategies and tactics.

5. Norms that do not permit the infliction of unnecessary physical or mental

suffering on combatants and non-combatants alike.

If I fail to find evidence of similar norms, this will constitute evidence against my claim that the grammar of moral discourse influences the emergence of the norms of armed violence.

How do I provide direct evidence for the claim that my theory is more compelling than the existing alternatives? The combined effect of analyzing the norms of war in culturally distinctive anarchic systems will show that the constructivist emphasis on shared understandings is inadequate. If norms emerge solely from collective knowledge

80 structures, it is hard to explain how culturally distinctive societies can nevertheless converge on similar norms. The best way to test my argument against a purely materialist account is to determine whether the norms of war emerge from similar material and social structures. To do this, in each case study I outline the historical development of humanitarian protection ideas by considering how structural factors in each social system prompted actors to propose norms and ideas about the morality of armed violence. Not only do I demonstrate that it is virtually impossible to move from social structures to norms without bringing in the grammar of moral discourse, but in addition I show that humanitarian protection norms are “multiply realizable”168: different structural forces can lead to similar social norms. This means that materialist and structuralist arguments cannot sufficiently explain the phenomenon of norm convergence.

Within each case, I show that the moral grammar theory of discourse and norms explains the evidence much better than rational choice institutionalism. Not only do actors accept humanitarian protection norms regardless of whether their opponents do, hence violating the idea that norms emerge to facilitate reciprocity, but in addition I argue that the content of the laws of war are hard to square with the expected-utility model of action that underlies rationalism. Just as prospect theorists argue that economic behavior violates the assumptions of rational choice theory, so too I argue that the content of the rules of war are not entirely consistent with the view that people act on expected-utility calculations. Actors rarely exhibit any clear signs of calculating the costs and benefits of different institutional forms, and expected-utility models cannot explain why people place an overwhelming significance on stopping intentional civilian deaths and yet allow

168 Wendt (1999, 155). 81 unintended deaths just in case they are consistent with a rule of proportionality. If the goal of such rules is to minimize civilian casualties, as many might expect, there is no clear reason why this rule might be chosen over some other rule that would have the same effect. For example, in line with the compensation rule discussed in the previous chapter, states could have chosen to allow civilian deaths, both intentional and unintentional, but to require that such deaths be compensated through monetary payments. This would have the virtue of forcing states to internalize the social costs of military strategies that threaten civilian lives. To be sure, such a rule would be difficult to enforce, but so are the rules of civilian immunity and proportionality. The fact that such a rule has never been considered in the history of humankind should give us pause. The reason why people do not consider such rules is because they have cognitive predispositions that lead them to place a high moral valence on intentional harms and a high value on human lives—a value that is not comparable to monetary exchanges.169 Hence, to explain the content of the rules of war, a psychological approach to moral discourse is necessary.

Conclusion

In this chapter I have presented a model of moral discourse that endorses the claim that some social norms are rooted in the universal structure of the mind. Consistent with recent research in moral theory, social psychology, cognitive science, and cultural anthropology, I claim that the rules of war in advanced international societies emerge in part from a finite set of innate mental models. The structure of the human mind exerts causal pressure on the emergence of humanitarian protection norms. In the following

169 Tetlock & Fiske (1991). 82 chapters, I evaluate these claims by analyzing the emergence of the laws of war in four distinct anarchic systems: (2) Warring States China; (2) early Islam; (3) early medieval

Europe; and (4) modern international society. If the universal grammar theory of moral discourse is correct, it tells us something important about the development of the humanitarian protection regime in modern international society. It tells us that the development of humanitarian protection norms was in some sense historically inevitable.

Although human history could have turned out differently, my argument suggests that since people who live in diverse social environments have very similar psychological and moral reactions to the pain and suffering of war, they will push for more humane international institutions when the opportunities for social change arise.

83

Chapter 3: State Formation and the Morality of War in Ancient China

Preface: Moral Discourse and Armed Violence in Anarchic Political Systems

From pre-modern tribes to highly advanced civilizations, all societies have elaborate rituals and normative codes that attend the use of organized violence. In pre-

Colombian North America, the Native American tribes in modern-day New England used organized violence as a way of restoring balance to their community after the loss of a tribe member, and the practice of taking scalps from slain enemy soldiers was part of an intricate mourning ritual that was thought to bring the tribe back to an equilibrium.170 In

Ancient China, people believed that there was an intimate connection between natural processes such as the change of the seasons and the well-being of the state. Because of this, the ruler was obliged to imitate the annual calendric cycle by restricting the use of political violence to the killing and dying seasons of the year, namely autumn and winter.171 In the Lushi Chunqiu, an official text compiled by the prime minister of the

Qin state in Warring States China, it was said that in the first month of summer

Things should be encouraged to continue to grow taller and to mature. Do nothing that will cause spoilage or injury…. Do not send forth large bodies of troops.172

170 Abler (1992, 7). 171 Lewis (1990, 138-146). 172 Knoblock & Riegel (2000, 116). 84

As these examples indicate, intentional violence is a socially meaningful practice similar in kind to religious ceremonies and funeral rites. It is virtually impossible to untangle the intricate threads that weave together the practice of organized violence and meaningful cultural symbols.

In spite of this fact, it is possible to detect cross-cultural similarities in the norms of armed violence, and these similarities suggest that the universal aspects of human psychology may play an important role in the social practice of warfare. In the next several chapters I examine the norms of armed violence in three highly advanced civilizations in order to test the claim that there is such a thing as a universal grammar of the laws of war. More specifically, I use primary textual evidence and secondary sources to justify the claim that a highly similar set of moral ideas and norms emerged in Ancient

China, early Islamic law, and early Western civilization. The primary textual evidence culled from philosophical treatises, ancient texts, and sacred scriptures clearly indicate that the members of these highly advanced civilizations used similar linguistic devices and comparable moral precepts to justify the claim that certain classes of people should not be killed in war, namely non-combatants. In the case of Ancient China, the norms of war, specifically the idea of civilian immunity and its associated rules, emerged in response to the expansion of ties of interdependence and the dispersion of social power.

In each of these cases, I begin by providing a brief overview of the major political and economic factors that led to the creation of moral ideas and impartial norms for the prosecution of military violence. Taken together, the evidence presented in these chapters allows us to confidently conclude that the humanitarian protection regime in

85 modern international society is simultaneously an outgrowth of universal cognitive structures and the social forces that underpin the development of advanced civilizations.

To keep the discussion in line with the flow of history, I begin with a discussion of the norms of war in Ancient China, and in the next two Chapters I analyze the development of early Islamic law and the rise of the civilian immunity norm in early Western civilization.

State Formation in Warring States China

The Warring States period in Ancient China (453-221 BC) was a time of immense social, political, and economic change. In the span of about two hundred years, an anarchic system comprised of seven great powers and an array of weaker states was subdued by a rising imperialist state named Qin that was located in the westernmost part of the Chinese realm. Through a variety of internal reforms and military strategies, many of them quite brutal, the leaders of Qin were able to unify the Chinese political system into a vast empire that would eventually outlast the hegemony of the Qin dynasty.173 In this section, I show that two structural-systemic factors influenced the moral ideology of military violence of the Warring States period in ways that increased support for granting protection to unarmed people, many of whom were peasants: (1) economic and political interdependence between the interests of state officials in the major regions of the

Chinese realm, the intellectual class, and the peasant population; and (2) the dispersion of social power brought on by the process of state formation.

173 Tin-bor Hui (2005, 54-108). 86

These factors not only led to the development of what is generally referred to as a

“people-centric” political ideology in Ancient China,174 but in addition they led political theorists and state officials to view warfare as a legal instrument for upholding the integrity of the social order—a factor that produced support for ideas that aim to protect innocent people. But though such structural factors made it more likely that political agents would grant protections to unarmed people in war, they did not determine the emergence of humanitarian ideas in the strict sense of the term. Without bringing in psychological factors such as empathy or collective identity, it is not clear why interdependence would induce actors to grant protections to unarmed peasants. In fact, since peasants had very little political power, interdependence could have led to more oppressive power relationships, and in some cases it did. The state of Qin, for instance, was comparatively brutal to its own subjects. Moreover, even though state formation does seem to have increased the social power of ordinary people to some extent, the

“early Chinese states were far from democratic,”175 and this means that they had little capacity to make their superiors more accountable. At some level, therefore, Warring

States theorists must have thought that the people are entitled to ethical treatment in war, regardless of the strategic benefits of adopting such a policy of self-restraint. Before defending these claims, I set the stage by describing the historical background of the

Warring States in the Western Zhou feudal system and the Spring and Autumn period. I explain how the process of state formation led to the development of a people-centric political ideology and to a nascent concept of the rule of law in the major intellectual

174 McNeal (2000). 175 McNeal (2000, 80). 87 schools of the Warring States period. I conclude my discussion by presenting textual evidence that supports the view that Ancient Chinese theorists discussed the norms of war by using moral precepts that are similar in kind to those of Western society and early

Islamic law.

The Emergence of the Warring States System

The Warring States period was preceded by two important historical eras: the

Western Zhou era (1045-770 BC) and the Spring and Autumn era (722-452 BC). The

Western Zhou system was a hereditary feudal aristocracy in which social status and political power depended upon familial ties. The ruling elite of the state were related by bonds of kinship and lineage, and the dominant officials in the administrative structure of government inherited power from parents and ancestors. The hereditary structure of rule was largely preserved in the transition from the Western Zhou system to that of the

Spring and Autumn period, but it became increasingly undermined in the transition to the

Warring States system.176 As a feudalistic structure of rule, the legitimate use of violence in the Western Zhao and the Spring and Autumn eras were defined by the values of what would now be called a “culture of honor.” In this case, violence of all forms, whether political or sacrificial, was restricted to the warrior nobility, and as historian Mark Lewis notes, warfare was “the hallmark of the aristocracy;” it was the principle means of gaining social prestige, economic wealth, and power.177

176 The transition between the Western Zhou and the Spring and Autumn period is usually marked by King Ping’s decision to move the royal capital from Zongzhao in the west to Chengzhao in the East. See Hsu (1999, 546). 177 Lewis (1990, 37, 54). 88

The social significance of armed violence in the Spring and Autumn era is evidenced by the fact that the proportion of unskilled foot soldiers in the armed forces were vastly outnumbered by skilled charioteers.178 To successfully command a chariot in battle, an individual has to undergo a great deal of combat training, significantly more so than the ordinary foot soldier. Although the skills required to become a skilled charioteer were most likely within the ken of ordinary peasants, training vast numbers of people for chariot forces would have been prohibitively costly. In any case, the social values of the time led states to devote more of their resources to employing skilled charioteers than ordinary foot soldiers. In addition, the culture of honor in the Spring and Autumn period was likewise manifested on the field of battle in which soldiers of “inferior” social status would show signs of deference to “superiors” in the enemy forces by removing their helmets to show respect.179 Though commanding a powerful armed based on the labor of infantry soldiers is a strategically rational way to win wars, the culture of honor in the

Spring and Autumn era led states to focus solely on using aristocratic warriors in battle.

The culture of honor that prevailed during the Spring and Autumn era generated so much internecine strife that it eventually destroyed much of the Zhao aristocracy.

The battles which constituted one element of the “great services” were primarily means of gaining glory for the linage and the self, so the nobles of the Spring and Autumn period lived a life devoted to the winning of prestige through heroism and martial prowess. This was true not only in wars between states but also in the struggles between lineages for supremacy within the state, and in the constant vendettas and acts of bloody vengeance provoked by the obsessive concern with honor and prowess. The pursuit of honor for the lineage and the individual noble led the Zhou aristocracy into a deepening spiral of civil war and mutual annihilation that ended in the destruction of much of the nobility and the creation

178 Hsu (1965, 66). 179 Hsu (1965, 55). 89

of the new political and social form that characterized the Warring States period.180

Those on the losing side of inter-state and intra-state conflicts often faced a significant decline in social status, and in some cases they were enslaved or “put to death as sacrificial victims.”181 The pursuit of honor and status not only decimated much of the aristocracy, but it also created incentives to expand the territorial range of the state and to increase the ranks of the armed forces.182

As a result, the armed forces of the Warring States period were significantly larger than those of the Spring and Autumn period, and although interstate wars were less frequent, they were much longer and more intense. In the Spring and Autumn period, most conflicts were relatively short, and most of them only “consisted of a single battle.183” In the Warring States era, wars were much longer, consisting of several battles that often stretched on for days and months at a time. Although wars were less frequent during the Warring States era, they were quite intense, sometimes leading to the deaths of tens of thousands of soldiers. The following table provides a summary of the war casualties in battles inflicted by the Qin state in several of its battles:

180 Lewis (1990, 51). 181 Hsu (1965, 59). 182 Lewis (1990, 54). 183 Hsu (1965, 63). 90

Table 4: Casualties of War in Battles with Qin

Year, BC Number of Defeated State Casualties 364 60,000 Alliance of Han, Zhao, and Wei 354 7,000 Wei 317 80,000 Alliance of Han and Zhao 312 80,000 Chu 307 60,000 Han 300 30,000 Chu 293 240,000 Alliance of Han and Wei 280 20,000 Zhao 274 40,000 Wei 273 150,000 Alliance of Zhao, Han, and Wei 260 450,000 Zhao Source: Hsu (1965, 67).

Not only do the statistics in Table 4 show that the use of violence was increasingly intense during the Warring States era, but they indirectly suggest that Warring States armies were quite large and able to sustain significant losses.184

In the Warring States period, warfare was thus no longer the provenance of the

Zhao aristocracy, but it increasingly included unskilled infantry soldiers from the lower classes, particularly the rural peasantry. In the Spring and Autumn era, the proportion of unskilled foot soldiers to skilled charioteers was relatively low to the same proportion in the Warring States era. For instance, in 660 BC, the state of Qi “sent three hundred chariots and three thousand men to Wey,” but in the Warring States period the average army had several thousand more foot soldiers, and chariots became increasingly obsolete.185 According to historian Cho-yun Hsu,

The reasons for replacing chariots by infantry are not clear, although two causes may be suggested. The first is that chariots were quite expensive; the second, that

184 Hsu (1965, 67). 185 Hsu (1965, 66). 91

they were inefficient. They were counted as units of wealth; a state would be said to possess about a thousand chariots while a noble family might own a hundred. A favorite of the chancellor of Chu was once envied for being rich enough to own horses for several chariots. Thus the expansion of an army consisting mostly of chariots could be prohibitively expensive to a state. A solution to the cost problem was the increase of foot soldier units in an army, which lessened the importance of the war chariots. The usual description of the military strength of a [Warring State] state was “one thousand chariots, ten thousands of cavalry, and several hundred thousand armored soldiers.” The number of chariots remained about the same as in the [Spring and Autumn] period, while other units of the army were greatly augmented or newly added.186

These considerations imply that states increasingly depended upon the military resources, labor in particular, of the rural peasantry.

Likewise, the need to prevail in war created incentives to harness the agricultural productivity of the peasant population and to create an institutional bureaucracy that prized individual merit over hereditary connections. The lust for power and war produced incentives to create a “rational-legal” state that could extract resources and labor from its subject population.187 Commenting on the importance of agriculture, Lord

Shang, a minister of the Qin state, claimed that

If the country does not take to agriculture, then, in its quarrels over authority with the various feudal lords, it will not be able to maintain itself, because the strength of the multitude will not be sufficient. Therefore, the feudal lords vex its weakness and make use of its state of decadence; and if territory is invaded and dismembered, without the country being stirred to action, it will be past saving. A sage knows what is essential in administering a country, and so he induces people to agriculture.188

As many scholars of state formation have noted, the drive to extract resources from the population can potentially generate resistance.189 People do not typically enjoy

186 Hsu (1965, 69-70). 187 Hsu (1965). 188 Duyvendak (1974, 192). 189 Tin-bor Hui (2005, 170) and Tilly (1992, 99). 92 being economically exploited or being conscripted into the armed forces without being given something in return. If the situation is one of all take and no give, and the social networks necessary for collective action exist, then rebellion is much more likely to ensue.190 To stave off rebellion, states need to either create a massive surveillance system that can effectively identify and respond to potential sources of trouble or they need to rule in ways that are more favorable to their subjects. Both strategies were used in varying amounts during the Warring States period, but the ideology of state power in this period was based upon a public philosophy that gave recognition, at least in principle to the interests of the people.191

The need to draw on the military and agricultural support of the rural peasantry to prevail in war created an interdependence of interests between the ruling elite and their subjects. Likewise, the need to have government bureaucracies staffed by the most able and knowledgeable individuals meant that members of the lower classes could rise through the ranks of the hierarchical class structure by honing their intellectual skills and abilities. Not only did this generate some level of collective identity between state officials and the rural populace, but it also meant that intellectuals, state officials, and other elites were increasingly draw from the lower classes, in some cases the rural peasantry.192 Education was a means for social advancement, and since members of the intellectual class were increasingly drawn from more humble origins, we can plausibly speculate that they were much more likely to empathize with the economic and political plight of the poor. As historian Yuri Pines notes, an important

190 Tilly (1992, 99). 191 McNeal (2000). 192 Hsu (1965, 104). 93

Factor behind the increasing attention paid to commoners in [Warring States] texts is the changed composition of the ruling elite….[N]ew recruitment procedures and increasing social mobility allowed a certain number of people from humble origins to join the ranks of the elite and to enter the state apparatus. These newcomers brought with them valuable personal experience that made them particularly attentive to the people’s economic miseries.193

The “economic miseries” of the people were quite severe during the transition to the

Warring States period. The transition from the feudal structure of the late Western Zhao period and the Spring and Autumn era entailed a massive increase in economic inequality: changes in methods of extracting surplus value from peasants (i.e. a move from a manorial system to one based on taxation in kind) created a system that encouraged some measure of private ownership of land, which in turn generated a significant economic gap between the rich and the poor.

Taken together, these factors made the interests of the ruling elite and the interests of the rural peasantry interdependent, and they are the source of the “people-centric” political ideology of the Warring States period.194 Although Warring states political theorists were firm defenders of monarchic authority, all of them, even the much more authoritarian defenders of Legalism such as Lord Shang (quoted above), endorsed a political ideology that regarded the material concerns of the people as the objective of good governance.195 Moreover, increasing technological sophistication, the expansion of the territorial expanse of the state, and improvements in infrastructural development made intra- and inter-state trade much more feasible during the Warring States period. In

193 Pines (2009, 200). 194 Pines (2009) and McNeal (2000). 195 Pines (2009, 187-222). 94 the Spring and Autumn period, there were a wide number of independent states, a fact which made commercial activities much more difficult and costly.

In a China so compartmentalized, a merchant would have to carry on any large- scale trade if each state and city insisted on having its own customs houses stop the passing of goods. The [Spring and Autumn] states therefore had to make agreements to ensure that trade could continue, since it was essential to all of them. It was to the ruler’s advantage to encourage commercial activity by at least treating merchants generously.196

Hence, not only was the Warring States period characterized by a high degree of interdependence between ruling elites, intellectuals, and peasants within states, but it was also characterized by some measure of interdependence between states—a fact that may have increased the degree of empathy between the people of different political communities.

The social forces associated with the development of state structures in early

China also led to some notion of intrinsic human equality. The decimation of the hereditary structure of rule in the Spring and Autumn era gave rise to an increasingly bureaucratized state structure that depended upon the labor of the intellectual class. In the Spring and Autumn era, power and status depended upon hereditary connections, but the internecine struggles of the warrior aristocracy created a dearth of individuals who had the ability to control the reigns of government. In addition, the need to prevail in war and to increase the wealth of the state created a demand to have the best and the brightest individuals in Ancient China incorporate themselves into the structure of the government bureaucracy. Not only did this give rise to the major intellectual trends that I discuss in the following section, but in addition it created a class of individuals, referred to as the

196 Hsu (1965, 116-117). 95

“shi,” or scholar-knights, who could make their living by serving the state. The rise of the shi prompted many scholars to claim that social status should not be rooted in hereditary connections but rather it should be rooted in individual merit. The political theorist Mozi even came very close to making the Enlightenment era claim that all men are created equal.197

Nowadays, kings, dukes and great officers, in ruling the people, in directing the altars of soil and grain, and in bringing order to the country, desire prolonged stability and avoidance of failure, so how can they not see that exalting worthiness is the foundation of government? How do I know that exalting worthiness is the foundation of government? I say it is from the fact that, when those who are noble and wise govern those who are foolish and base, there is order whereas, when those who are foolish and base govern those who are noble and wise, there is disorder. This is how I know that exalting worthiness is the foundation of government. Therefore, the sage kings of old particularly followed exalting worthiness and employed utilizing ability and there were no factions with fathers and older brothers, no partiality towards the noble and rich, and no favoritism towards those of fine appearance…198

Therefore, the ancient sage kings gave careful attention to exalting worthiness and utilizing ability in the conduct of government, taking their model from Heaven. Heaven does not discriminate between rich and poor, noble and base, far away and near at hand, close and distant [relations]. Those who are worthy are put forward and advanced whereas those who are unworthy are held back and rejected.199

The Confucian scholar Xunzi made similar comments about the essential equality of human beings:

Everyone has characteristics in common with others. When hungry he desires to eat; when cold he desires to be warm; when toiling he desires to rest; he wants what is beneficial and hates what is injurious—with these attitudes man is born; he has them without waiting to learn them; in these respects Yao and Chieh were alike… A person can become a Yao or a Yu [two ancient sage kings]; he can become a Chieh or a Chih; he can become a day laborer or an artisan; he an become a farmer or a merchant; it depends on what training he has accumulated

197 Hsu (1965, 142). 198 Johnston (2010, 63). 199 Johnston (2010, 75). 96

from his ways of looking at things and his habits…Yao and Yu were not born great; but they began in trouble and completed their development by artificial cultivation; they had to wait and strain all their resources and then only could they be perfect.200

The Intellectual Currents of the Warring States System

The social and intellectual currents of the Warring States system gave rise to at least four major schools of thought: Confucianism, Legalism, Mohism, and Taoism. The process of state formation created a demand for highly educated government officials and functionaries, and in response, educational institutions started to emerge, beginning with the Confucian school which was founded by Confucius in the late Spring and Autumn period. Along with the general trends in social mobility, both the masters of these schools and their students were often from the social class that occupied the lowest rung of the ruling elite strata that was known as the “shi,” or the scholar-knight class. In addition, the internecine strife of the late Spring and Autumn period created a significant gap in the ranks of state administration, which benefited the shi by providing them with government positions.201 In any case, in a society that increasingly awarded individual merit, intellectual skills, and abilities, the educational system provided a bridge into the ranks of the upper classes.

As with most intellectual paradigms, the masters and students of these diverging schools of thought disagreed about a number of things, but there were also some overlapping views that most of them shared.202 First off, the monarchic system of government was almost completely taken for granted by these scholars, and as such all of

200 Quoted in Hsu (1965, 144). 201 Pines (2009, 118). 202 Pines (2009). 97 them believed that the legislative and administrative power of the state should rest with one individual and his underlings. The only possible exception to this claim was the

Taoist school of thought, which endorsed the quasi-anarchist idea that people should avoid government work to seek “inner tranquility,” and that the state should ideally rule without ruling.203 The principles of monarchism were hegemonic for Warring States theorists because many of them endorsed a certain view about the relationship between human societies and the cosmological structure of the universe: they believed that there is a strong connection between the well-being of the political system and the basic cycles of nature. Also, they believed that the state should model itself off of the cosmic principle of the Tao, which is usually translated as the “Way.”

As it applies to the domain of moral and political philosophy, the Tao is something like the rightful path. Sinologist Karen Turner suggests that the Tao is similar in kind to the idea of natural law in the Western political tradition, and the only major difference is that the Tao is only accessible by a sage.204 In the Western philosophical tradition, the principles of natural law are accessible to all rational agents irrespective of specialized knowledge. In an Ancient Chinese text known as the Jingfa, it is said that

“the Tao gives birth to the law and law is what marks success and failure. Used as a marking line, it clarifies what is crooked and what is straight.”205 As Turner points out,

In a wide variety of texts, Tao was called upon as a metaphor for political life, a useful model for ruling because it was at once unified and the source of all things…. [The] Tao [is] a timeless, universal, impartial standard and the law that it generates is a reliable guide for the hard decisions that fall to any ruler: when to begin a military campaign and when to wait until conditions are suitable, when to

203 See Hsu (1965, 140) and Lewis (1990). 204 Turner (1992). 205 Quoted in Turner (1992, 23). 98

punish the people and when to show lenience, how to obtain clear, trustworthy information from subordinates, and how to organize officers according to their abilities.206

The Tao is similar in kind to the principles of natural law because it provides people with an impartial, transcendent standard for evaluating the policies of the state. Chinese theorists did not always agree about the requirements of the Tao, but almost all of them believed that the ruler should understand the Tao and model himself off of it. It was thus a central concept in the political imaginary of the Warring States system.

The reason why most Warring States theorists endorsed the principle of monarchism is because they all thought that the ruler has privileged access to the Tao.207

Like many Western theorists, Hobbes in particular, Warring States theorists believed that the existence of the sovereign state is morally justified because it can keep the people from falling into chaos and anarchy.208 The reason why they endorsed a monarchical form of government, however, is because they believed that only a sage can attain the type of specialized knowledge necessary for governing all under Heaven. This does not necessarily mean that Warring States theorists were out and out critics of the ability of ordinary people to move up in the hierarchical class structure; far from it. Some of the

Confucians, for instance, believed that all people have the capacity to become sages, but this depends upon moral virtue, knowledge, and work. These considerations are relevant for the claims made in this dissertation because they suggest that liberalism is not necessary for the development of humanitarian protection ideas. Since Warring States theorists endorsed a decidedly “unliberal” political philosophy, and since many of them

206 Turner (1992, 23). 207 Turner (1992, 42). 208 Pines (2009, 32). 99 endorsed the idea that innocent people should not be killed in war, this shows that liberal beliefs are not necessary for humanitarian protection ideas to take root.

Secondly, virtually all of the Warring States theorists believed that the objectives of good governance are political order, or freedom from chaos and anarchy, and the material sustenance of the people. However, they disagreed over how the ruler is supposed to achieve order within the Chinese realm, and these disagreements are important for understanding the different strains of thought on the legitimacy of political violence. While the Confucians believed that the state should achieve the objectives of good governance by cultivating the moral virtue of the ruler, the Legalists believed that the state should achieve these ends through law and punishment, and the Mohists believed that it should extend universal love to the people.209 Confucian scholars thought that the state should try to achieve its ends in the world by cultivating the virtue of the ruler and by using strategies of non-violence. Only when it is absolutely necessary may the state use violence, and even in these cases such violence must be motivated by the end of promoting the welfare of the people. Mohists believed that offensive warfare is inconsistent with the demands of extending universal love to the people, and they believed that it is wrong because it threatens the lives of innocent people. Legalists, who are fairly similar to political realists in the Western tradition, were more comfortable with the use of violence than were the Confucians or the Mohists. But even they believed that the objective of state policies must be defined at least in part by reference to the interests

209 The Confucians believed that by cultivating his moral virtues, the just ruler would serve as a moral exemplar to his people, and he would be able to lead his people down the path of righteousness. 100 of the people.210 In spite of their differences, therefore, all Warring States theorists believed that the objective of good governance is to promote the welfare of the people, and this view had a significant impact on their interpretation of the legitimacy of armed conflict.211 Before discussing these issues in more detail below, in the next section I discuss the development of the notion of the rule of law in early China.

The Rule of Law in Ancient China212

The need to govern a vast territorial spaces that included a much more expansive array of people necessitated the creation of a legal system that was based on a nascent concept of the rule of law—a fact that would eventually become more important with the establishment of the imperial system of rule in 221 BC under the hegemonic power of

Qin.213 Political power was heavily concentrated in the hands of the ruling elite, but not so much that elite actors could do whatever they wanted. Indeed, as my earlier comments about the rise of the shi indicate, the social composition of the ruling elite was subject to major changes during the late Spring and Autumn and Warring States periods in Ancient

China, which effectively moved away from the hereditary aristocracy.214 The rise of an educated class that had much to offer the rulers of the major powers in Warring States

China created a “market for talent” that shifted more power to members of the shi.215

The world of Warring States can be compared to a huge market of talent, in which a gifted person could seek employment at any of the competing courts. This

210 See Pines (2009). 211 McNeal (2000, 266-308). 212 Turner (1992). 213 Turner (1993, 317) and Turner (1992). 214 Pines (2009, 117). 215 Pines (2009, 168). 101

distinctive freedom of crossing boundaries was, as Mark Lewis has insightfully noted, completely at odds with the general trend of the Warring States to limit the geographical mobility of their population. While the rulers did their best to control the movement of average subjects, they apparently excluded shi from this harsh control, accepting as normal a situation in which a shi “served Qin in the morning and Chu in the evening.”216

Likewise, the need to expand the bounds of the state would inevitably force the state to accommodate a wider range of interests, and so it was generally taken for granted that in domestic and international affairs states should use force in accordance with “rules.”217

As Victoria Tin-bor Hui notes,

In the feudal era, the common people had no right to know the law or why they were punished. In order to win popular support, some rulers began to promulgate legal codes publicly. As the law “was meant to bind rulers and ruled alike,” it gradually became “the contractual basis upon which the people would accept a given ruler-ship”…in the mid-fourth century BC, Qin’s reformer [Lord Shang] institutionalized the principle of equality before the law—that “punishment should know no degree or grade…from ministers of state and generals down to great officers and ordinary folks.”218

In armed conflict, it was generally presumed that the military needed to gain the support of the people in order to prevail in battle, which required operating in accord with certain procedures and rules. I discuss these rules in the following section.

In line with this general way of thinking, the political theorist Mozi argued that rulers cannot do whatever they please but that they are subject to the demands of Heaven, which in turn requires them to show “universal love” to the people, or in other words to benefit them impartially. In a set of passages that are worth quoting at length, Mozi claimed that

216 Pines (2009, 168). 217 Turner (1993, 292). 218 Tin-bor Hui (2005, 172). 102

Those who work in the world cannot do so without standards and rules. No-one has ever been able to accomplish anything without standards and rules. Even those who are generals and ministers all have standards… Nowadays the greatest achievement is to bring order to a large country, but to attempt these things without reliance on standards is to compare unfavorable in wisdom with the hundred craftsmen.

This being so, then what can be taken as a standard for bringing about order?... Would it be fitting if everyone took their ruler as a standard? There are many rulers in the world, but few who are benevolent. If everyone took their ruler as the standard, it would be a standard without benevolence. A standard without benevolence cannot be taken as a standard….

This being so, then what may be taken as a standard for bringing about order? It is said that there is no standard like Heaven. Heaven is broad and unselfish in its actions, and is generous in bestowing without considering itself virtuous….If Heaven is taken as the standard, then all one’s actions must be measured against Heaven. What Heaven desires should be done and what it does not desire should not be done. This being so, what does Heaven desire, and what does Heaven abhor? Undoubtedly what Heaven desires is that there by mutual love and mutual benefit among people. What it does not desire is that there be mutual hatred and mutual harm among people….

Nowadays, all countries under Heaven, no matter whether large or small are Heaven’s countries. People, whether young or old, whether noble or base, are all Heaven’s subjects… Heaven will certainly bring good fortune to those who love people and benefit people and…Heaven will certainly bring misfortune to those who hate people and harm people. It is also said that those who kill the innocent will meet with disaster…219

Now kings, dukes, great officers, and gentlemen of the world, if they truly wish in their hearts to honor the Way and benefit the people, must from the start examine the basis of benevolence and righteousness, and accept that Heaven’s intention must be complied with. Compliance with Heaven’s intention is the standard of righteousness…. What do I say constitutes compliance with Heaven’s intention? I say it is universal love for the people of the world….220

219 Johnston (2010, 25-29). 220 Johnston (2010, 261-259). 103

As this passage indicates, Mozi firmly believed that rulers should be subject to the transcendent demands of Heaven, and that Heaven itself showed no favoritism toward those of noble birth; it is impartial toward the interests of all.

There are two general reasons why a political system might endorse the idea of the rule of law. In modern constitutional democracies, the rule of law provides states with the institutional mechanisms for controlling arbitrary decisions on the part of the executive, and the ultimate end here is to protect the welfare and rights of citizens. The rule of law is generally contrasted with the rule of man; the idea is that constraining the government by impartial laws is one way of protecting the rights of individual people against abuses. To some extent, this idea did exist in the Warring States system. Many theorists believed that states should aim to protect the welfare of the people, and operating in accordance with universal laws is one important way of satisfying this objective, as Mozi’s views clearly indicate. An additional reason for endorsing the rule of law idea in Ancient China was to maintain uniform predictability in the structure of government so as to protect the state, not the people, “from the weaknesses and ambitions of [incompetent] rulers.”221

Karen Turner suggests that there are at least six elementary principles of the rule of law, and that contrary to the views of some interpreters many of these principles were defended by prominent scholars in the Warring States system: (1) the generality and universality of law; (2) the idea that law should not be subject to the arbitrary will of rulers; (3) the idea that the administration of justice should follow formal procedures; (4) the idea that the judicial branch of government should be free from executive pressure;

221 Turner (1992, 18). 104

(5) the idea that the law should be congruent with the practices of state officials; and (6) the idea that the law should be subject to transcendent standards of justice.222 Since there was no such thing as the separation of powers in the Warring States era, the only ideal that was not well met in the Warring States system was ideal (4). Yet, Turner argues that

Warring States theorists did defend many of the other basic requirements of the rule of law ideals, and it was their endorsement of these basic ideals that underpinned their view on the nature of legitimate political violence. It led them to believe that the use of coercion and violence in domestic and international affairs had to be subjected to certain rules and ideals.223

To summarize the discussion thus far, the process of state formation in early

China led to the development of a people-centric political ideology that emphasized the material needs of the rural populace and the development of a legal system centered on rule of law ideals. In contrast to the previous historical period, the goal of gaining access to “human capital” came to dominate the political agenda of Warring States elites.224

Meeting the needs of the people became a central objective of state policy. In addition, the increasing territorial expanse of the state meant that it had to govern itself according to rules, which for our purposes suggests that it had to govern itself according to particular rules of armed violence. The structural process of state formation, therefore, made the development of the kinds of rules of war that I discuss in the following section more likely. However, this structural force did not determine the creation of humanitarian protection ideas. Political actors could have decided to endorse different

222 Turner (1992, 7-8). 223 Turner (1993, 292). 224 McNeal (2000, Abstract). 105 ideas, and indeed the fact that there were varying intellectual schools at the time suggests that they did have room for movement within the context of broader structural forces.

Furthermore, in light of the fact that wholly different structural forces in early Islam and early Western civilization would lead to similar ideas suggests that individual moral beliefs play a much larger role in the creation of normative structures than many political scientists are willing to admit. In the following section I review how Warring States political theorists thought about the morality of warfare and political violence.

War and Peace in Warring States Political Thought

The Righteous War Tradition in Ancient Chinese Thought

As with modern international law, early Christian ethics, and medieval Islamic jurisprudence, Ancient Chinese political and military theorists had a sophisticated tradition of thought devoted to the ethics of violence and warfare.225 Given their rule of law ideals and people-centric political ideology, Warring States theorists believed that military violence should be executed in accordance with certain rules and that it should be prosecuted for the benefit of the people.226 As with the early proponents of the just war tradition in the West, particularly Augustine, Chinese theorists believed that warfare is a form of punishment for legal or moral infractions and that it should not be undertaken at the whims of the ruling elite and their military commanders.227 In line with the

Harmful Action model above, many theorists argued that unprovoked military violence is clearly immoral, and it is immoral because it threatens the lives and welfare of the

225 See Lewis (2006) and Stroble (1998) for an excellent review of Ancient Chinese military theory. 226 McNeal (2000, 266-308). 227 Turner (1993), Lewis (2006), and Stroble (1998). 106 innocent. This view comes forth clearly in Mozi’s arguments against offensive war, but it is implicit in other ancient texts. Mozi claims that

When it comes to killing an innocent man, seizing his clothes and fur garments, and taking his spear and sword, the lack of righteousness is even greater again than entering another’s animal enclosure and taking his horses and oxen. What is the reason for this? It is because the loss to the other is even greater. If the loss to the other is even greater, then the lack of benevolence is even greater and the crime more serious.228 The killing of one person is spoken of as unrighteous and certainly constitutes one capital offense. Reasoning on this basis, killing ten people is ten times as unrighteous, so certainly constitutes ten capital offenses. Killing a hundred people is a hundred times as unrighteous, so certainly constitutes a hundred capital offenses. If this is valid, the gentlemen of the world should all know and condemn it, and call it unrighteous.229

For Mozi, offensive war is a much more serious crime than the killing of one innocent person because it involves the killing of a great many innocent people; if killing one person is wrong, then killing many is even worse.

However, Mozi, along with many other Warring States theorists, particularly the

Confucians, argued that punitive violence is entirely justifiable: deposing tyrannical rulers who brutalize their people is morally permissible, and perhaps even obligatory.230

Attacking a state that has done no wrong violates a moral imperative that only allows states to use violence against guilty parties. On the Confucian worldview, political rulers are not simply entitled to control their subjects at their own volition, but they are required to abide by a set of basic guidelines for political governance. If rulers failed in their obligations to their people or if they oppressed them, then they ceased to have a legitimate claim on the devotion of their people, and in some cases this may justify

228 Johnston (2010, 167). 229 Johnston (2010, 167-169). 230 Johnston (2010, 189-197). 107 revolutionary violence from within or external intervention from without. In The Book of

Historical Documents, an ancient Confucian text that chronicles the early history of

China, legitimate violence is almost always regarded as punitive in nature: kings are permitted to overthrow the rulers of other states, but only if these rulers fail in their obligations to their people.231 Some scholars believe that this doctrine of the “righteous war” is an ancient precursor to the modern notion of humanitarian intervention.232 In addition, it is possible to discern an elementary notion of civilian immunity in early

Chinese texts on military doctrine, and I comment on this below after discussing the notion of punitive warfare in more detail.

As a reflection of the more pacifist strain of thought in early China, the

Confucians believed that the ideal form of government is one that rules without coercion.

Good governance, in both internal and external relations, depends upon the virtuous character of the ruler: in order to maintain harmonious social relationships, the ruler must cultivate his own character and serve as a good example for his people. The Confucians believed that by cultivating virtuous social practices, a righteous ruler can serve as an example for his people, with the hope that legal coercion will not be necessary to correct vicious behavior. Similar considerations apply to external relations with other political entities: rulers should not use force to achieve their objectives but rather they should act virtuously toward other leaders and engage with them diplomatically in the hope that they will follow the example of righteous rule—an idea that is similar in kind to the notion of using “soft power.” Social harmony cannot generally be achieved through force but

231 Legge, James (1991). 232 Wang (2010) and Bell (2008). 108 rather it can only be achieved through virtuous action and persuasive diplomacy. Indeed, some interpreters claim that the Confucians were relatively pacifistic in the sense that they believed that “violence is not capable of producing social control.”233

Nevertheless, many Chinese theorists, the Confucians included, did appear to have a well-articulated account of legitimate political violence.234 Mencius believed that aggressive violence for the sake of territorial gain was inherently immoral, and he believed that military strategists who undertake such wars should be severely punished.

In wars to gain land, the dead fill the plains; in wars to gain cities, the dead fill the cities. This is known as showing the land how to devour human flesh. Death is too light a punishment for such men. Hence those skilled in war should suffer the most severe punishments; those who secure alliances with other feudal lords come next, and then come those who open up wastelands and increase the yield of the soil.235

However, Mencius believed that rulers are permitted to defend themselves against predatory violence from other states. In response to a request from the Duke Wen of

T’eng concerning the legitimacy of defending oneself against predatory invasion,

Mencius makes the following point:

“This question is beyond me,” answered Mencius. “If you insist, there is only one course of action I can suggest. Dig deeper moats and build higher walls and defend them shoulder to shoulder with the people. If they would rather die than desert you, all is not lost.236

233 Stroble (1998, 173). 234 This claim applies to domestic and international relations. Joseph Chan interprets the Confucian view as implying that since virtuous action requires that the individual agent be motivated by virtue, “one cannot be compelled by force to be virtuous.” However, this does not mean that bad people cannot be coercively prevented from harming others: “if the use of force is proved to be the best among all options or the least of all evils from preventing [some unethical deed] from happening, there seems no fundamental tenet in Confucianism that would prevent it from using coercion,” (2008: 125). 235 Mencius, Book IV: A14. In this citation, and in the ones that follow, I use the D.C. Lau (1970) translation of the Mencius. 236 Mencius, Book V: B13. 109

In addition, as I hinted at above, Mencius and other Confucian scholars believed that rulers are permitted to overthrow morally depraved rulers who brutalize their people.237

In an extended discussion on the principles of warfare, the Confucian scholar Xunzi made the following comments about the morality of warfare:

Chen Xiao questioned Master Xun Qing, saying: Sir when you debated the principles of warfare, you constantly stressed that humanity and justice constitute its fundamental basis. If it is true that one who is humane loves others and the one who is moral accords with rational order, then once again how is it that such persons could engage in warfare? For, as a general rule, the reason for which they possess armies is that they would quarrel over or steal something.

Master Xun Qing replied: It is not as you understand. That humanity of which I spoke does indeed involve loving others, but it is just such love for others that causes a hatred of whoever does injury to them. That morality of which I spoke does involve acting in accord with rational order, but it is precisely according with rational order that causes hatred of whoever disrupts it. The military principles of which I spoke are just the means whereby to prohibit violent aggressive behavior and to prevent harms to others; they are not the means of contention and confiscation. Wherever the army of a humane man is, it has an effect like that of the spirit; wherever it travels, it produces transformation. Like seasonable rains, it pleases and gives joy to all.238

These comments indicate that even though Confucian scholars did generally believe that

“a virtuous ruler had no need to use military force because he would have no enemies,” they did not reject the idea that violence can be used for legitimate purposes, e.g. punishment for tyranny.239 The concept of the righteous, punitive expedition was not simply advocated by Confucian theorists, but as Iain Johnston points out “the notion of the righteous war pervades” classical thinking on violence and statecraft in early

China.240

237 Bell (2008, 235). 238 Xunzi, Book VII: 15.2. Here, I use the John Knoblock (1990) translation. 239 Johnston (1995, 45). 240 Johnston (1995, 69). See also Lewis (2008). 110

Non-Combatant Immunity in Ancient Chinese Texts

Although discussions of the righteous war in Ancient Chinese thought do not always include elaborate discussions of the rules for protecting civilians, some writers explicitly argued that virtuous soldiers should distinguish between the guilty and the innocent, especially when trying to occupy foreign territory. Xunzi, for instance, claimed that “A True King does not butcher the inhabitants of a city.”241Mozi’s work contained very few comments that suggest he adhered to a strict delimitation between combatants and non-combatants, but for the most part his analysis of war out-rightly rejected the use of offensive violence. Mozi only believed that defensive war was permissible, and so he did not devote a significant amount of attention to making the distinction between combatants and non-combatants in enemy territory.242 However, moral respect for common people in the midst of war comes forth clearly in a number of prominent military treatises of the Warring States period. In the Tai Gong Liu Tao, a section on occupying enemy territory contains the following suggestions:

Do not set fire to what the people have accumulated; do not destroy their palaces or houses, nor cut down the trees at gravesites or altars. Do not kill those who surrender or slay your captives. Instead, show them benevolence and righteousness, extend your generous Virtue to them. Cause their people to say “the guilt lies with one man.” In this way the entire realm will submit.243

Similarly, in a much clearer statement of the distinction between combatants and non- combatants the Si Ma Fa issues these commands:

When you enter the offender’s territory, do not do violence to his gods; do not hunt his wild animals; do not destroy earthworks; do not set fire to buildings; do

241 Xunzi, Book XV, 15.1f. 242 Nevertheless, his argument against offensive warfare depends crucially upon the notion that such wars threaten the lives of innocent people who have done nothing wrong. 243 Sawyer (1993, 87). 111

not cut down forests; do not take the six domesticated animals, grains, or implementations. When you see the elderly or very young, return them without harming them. Even if you encounter adults, unless they engage you in combat do not treat them as enemies. If an enemy has been wounded, provide medical attention and return him.244

The Wei Liao Zi likewise recommends that “in general, [when employing] the military do not attack cities that have not committed transgressions or slay men who have not committed offenses.”245 Even though military theorists and state officials most likely advocated the idea of civilian protection in order to “win the hearts and minds of the people,” they clearly associated the act of protecting the innocent with benevolence and righteousness. For a set of military treatises that are often associated with realpolitik thinking about the nature of war and violence, such comments are suggestive of a widespread inculcation of a view about the moral necessity to protect innocent people in war.246

In the Lushi Chunqiu, an official text that was compiled by Lu Buwei, the prime minister of Qin right before its rise to imperial hegemony, similar claims are made about the need to protect the innocent in wars of conquest. The Lushi Chunqiu generally endorses the Confucian view that the use of violence for the purpose of ending tyranny is justifiable, and in one passage it says that

…there is no greater act of immorality and no greater harm to the peoples of the world than failing to distinguish between the moral and the immoral, and rather hurriedly adopting the policy of indiscriminate defense by “rescuing” and “protecting.” Thus, it is logically inadmissible either to adopt a policy of aggressive warfare or to condemn it. It is only the use of weapons in a righteous cause that can be considered proper. If weapons are raised in a righteous cause,

244 Sawyer (1993, 128). 245 Sawyer (1993, 254). 246 Johnston (1995). 112

then both aggressive and defensive warfare are proper. If the cause is not righteous, then neither is proper.247

In the Lushi Chunqiu, permissible violence is coextensive with violence that aims to punish those who lack the Tao: “Now, instances of aggressive warfare should never fail to involve attacking those who lack the Tao and punishing the immoral.”248

Consequently, the use of violence against the innocent, i.e. those who have done no wrong, is inherently immoral. These views generate support for the idea that virtuous soldiers should distinguish between combatants and non-combatants.249

Violence and deception are the opposites of reason and morality. These two conditions cannot both prevail and cannot coexist. Hence, when a righteous army enters the borders of an enemy, all the knights there know they are going to be protected, and the black-headed people know they will not die. When it reaches the outskirts of the capital, the army does not destroy the Five Foods, plunder graves, cut down trees, burn stores and supplies, torch houses, or confiscate livestock. The righteous army, by whom it takes prisoner or sends home, gives concrete shape to what it likes and despises. It is consistent with the people’s expectations that the army should seize the enemy’s goods. If it acts thusly when there are instances where those who are recalcitrant and envious continue their misdeeds and are disobedient, even though one resorts to military might, it is entirely proper.

The heralds shout out and proclaim: “The soldiers have come to save the lives of the people. You sirs, on high, lack the Tao: you are arrogant and decadent, predatory and oppressive, licentious and selfish.

You have cast out the institutions of the sages, slandered the First Kings, and reviled the old statutes: Above you disobey Heaven; below you mistreat the people.

You tax without limit and make further exactions without tiring. You punish and murder the innocent and congratulate and reward the undeserving. Such people are punished by Heaven, opposed by others, and are unfit to rule. Thus, now our army has come to execute the man who is unfit to rule, to eliminate the enemy of the people—all in compliance with the Tao of Heaven. Those people who

247 Knoblock & Riegel (2000, 182). 248 Knoblock & Riegel (2000, 180). 249 Lewis (2006). 113

disobey the Tao of Heaven and give aid to the enemy of the people will be killed and their families executed without mercy. Those who bring about a household’s submission will be rewarded a household. Those who bring about a lane’s compliance will be rewarded a lane. Those who bring about a village’s submission will be rewarded a village. Those who bring about a town’s compliance will be rewarded a capital.

Thus, in conquering a state, do not harm the people. Execute only those who deserve execution…250

Incidentally, Qin was one of the most brutal states in the Warring States system, and Tin-bor Hui notes that its use of ruthless military stratagems was one of the secrets to its success in establishing control over the Chinese realm.251 Even though Qin was known to have massacred defeated troops and civilians in battles that took place in 293 and 279 BC, Lu Buwei took (de facto) command of Qin much later in 250 BC. John

Knoblock and Jeffrey Riegel suggest that “the military doctrines opposing the killing of innocent people and advocating the practice of ‘righteous warfare,’ incorporated in the military chapters of the Lushi Chunqiu, derive from the actual military strategy employed by Lu.”252 As the Lushi Chunqiu was designed as a manual for a universal empire, it is likely that its suggestions for restricting the use of force against the people were strategic: binding oneself by impartial rules that others can accept is a way of ensuring their support. As one passage notes, “if one desires to be made Son of Heaven, one must not fail to examine what attracts the people.”253 But this does not imply that the moral beliefs upon which these claims were based were any less genuine: the textual evidence suggests that Warring States theorists clearly connected the idea of protecting innocent people

250 Knoblock & Riegel (2000, 185-186). 251 Tin-bor Hui (2005, 86-87). 252 Knoblock & Riegel (2000, 12). 253 Knoblock & Riegel (2000, 92). 114 with those of benevolence and righteousness. This means that even though these ideas may have been adopted for strategic reasons, they had a moral logic and rationale that outstripped their strategic value.

Conclusion

Taken together, these texts suggest that political and military theorists of the

Warring States era generally endorsed the idea that the lives and livelihoods of the civilian population should not be harmed in battle. As will become clearer in the following chapters, the only ostensible difference between the writings of the Warring

States era, Islamic law, early Western civilization, and the modern civilian protection regime is that Chinese theorists did not seem to endorse a rule of proportionality.

However, Mozi’s arguments against offensive warfare suggest that an impartial concern for maximizing human welfare was intrinsic to his views on the morality of warfare and political violence, and so at the very least one can conjecture that he probably would not have rejected the notion of proportionality as it exists in modern international law.

Moreover, as textual evidence clearly indicates, the moral language used to defend the idea that unarmed peasants should not be killed is strikingly similar to the language used to justify the notion of civilian protection in early Islamic law, the just war tradition, and in modern international society. This suggests that there is such a thing as a grammar of moral discourse and that this grammar influences the emergence of moral doctrines on violence and war.

115

Chapter 4: Moral Discourse and Armed Violence in Early Islamic Civilization

In contemporary world politics the ethics of war in Islam has become the subject of heated debates, most of which are motivated by hatred and fear rather than rational analysis and empirical evidence. Notwithstanding the significance of radical fringe groups like al-Qaeda or the Taliban, the idea that Islam is inherently violent or that it disregards the legitimate interests of non-combatants in war in almost completely false.

Like many religions, Islam emerged as what might be called a universalistic faith whose adherents believed in a divine mandate to unify humankind under a single ethical, political, and spiritual system.254 Efforts to achieve this goal demanded varying degrees of peaceful and violent instruments, but to that extent early Islam was no different from

Christianity. To be sure, the rapid spread of the Islamic faith in the Near East,

Mesopotamia, North Africa, and parts of Spain was mostly the result of superior military force and strategy, all justified by reference to the religious goal of subduing the peoples of the earth. Yet, even at the earliest stages of the formation of the Islamic empire the use of violence was seen as being subject to normative restraints. As I endeavor to show in this chapter, these restraints have universal ethical content. Islamic civilization did form and spread through armed violence, but it was a form of violence not altogether chaotic and lawless. Islam was to a large extent a civilizing force in the Middle East, and so some of the most potent weapons in its imperial arsenal were ideational in essence.

254 Khadduri (1996) 116

This chapter contributes to our understanding of the emergence of the laws of war in early Islamic civilization. In recent years, a number of scholars have argued that the laws of war in Islam are fairly similar in content to the jus in bello rules of the European just war tradition, but very few theorists have attempted to explain how these laws came about.255 Here I argue that materialist theories, constructivism, and rational choice institutionalism cannot fully explain the emergence of the Islamic norms of war in general and non-combatant protection norms in particular. Consistent with the expectations of structural-systemic or materialist theories, it is certainly true that the social environment of early Islam exerted a powerful influence on the norms of war, and indeed some evidence does indicate that the peculiar environment of early Islam may have affected the Muslim notion of holy warfare and the more militant strains of Islamic jurisprudence.256 In line with my analysis of state formation and the norms of war in early China, some evidence does show that the push to expand the Islamic state may have induced elites to adopt a policy of self-restraint toward the inhabitants of conquered lands. 257 Yet it is difficult to find any hard evidence that directly links the formation of the Islamic state to the development of civilian protection norms, and in fact the evidence suggests that these norms most likely predated the establishment of Islam. This shows that a purely structural or materialist account of humanitarian protection norms is inadequate.

255 Kelsay (2007), Kelsay (2006), Johnson (1997), Ali & Rehman (2005), and Silverman (2002). 256 For more on the development of the Holy War in Islam, see Firestone (1999).

257 In the conquest of Iraq, for instance, the Islamic state explicitly decided against dispossessing local peasants in the hopes that this would help maintain political stability and increase agricultural productivity, which would thereby increase tax revenue. In addition, tax policy in the empire was designed to be high enough so as to generate sufficient revenue, but not so high as to generate peasant resistance. See Donner (1981, 240) and Donner (1986). 117

In my view, the most plausible interpretation of the Islamic laws of war must take into consideration both their historical-cultural background and their innovative significance. As I demonstrate in the third section below, warfare and raiding were endemic facts of life on the Arabian Peninsula before the rise of Islam, and as a result inter-tribal violence was regulated by implicit social norms, some of which prohibited attacks on women and children.258 The Islamic legal restrictions on attacking women, children, the aged, and the infirmed are clearly a more modern incarnation of these pre-

Islamic norms. As with many of the social traditions of pre-Islamic peoples, the Islamic state adopted these rules and to some extent took them to a higher level, viewing them as universally valid, deontic constraints on military action.259 Hence, the Islamic empire was in some sense a civilizing force in its own right, one that built and developed its legal norms and social structures upon the ashes of the cultures that it either superseded, as in the case of the Arabian Peninsula, or conquered, as in the cases of Syria, Iraq, and North

Africa.

But if the Islamic laws of war are simply an “Islamicized” version of preexisting cultural norms, then one might argue that a constructivist or rationalist account might be adequate. Yet, I argue that constructivism and rationalism face serious problems in trying to explain the norms of war in early Islam. On the one hand, the fact that Islamic legal theorists endorsed norms that are highly similar to those that emerged in Ancient

China and in Western international society raises a problem for the constructivist account of norms. But even if we overlook this fact, constructivism still faces an important

258 Donner (1991, 34). 259 See Donner (1981) and Levy-Rubin (2011). 118 hurdle in trying to explain the norms of war in Islam. While it is true that pre-Islamic peoples did seem to adopt restrictions on how civilians, particularly women and children, can be treated in battle, they also adopted a lot of other norms that the Islamic empire eventually abandoned. For instance, Bedouin tribesmen had an agreement with each other that fighting can only take place during certain months of the year and that some months were off limits.260 Early Muslims generally adopted this restriction, but over time this norm vanished. Yet, they never abandoned the idea that women and children cannot be killed or that enemy soldiers cannot be mutilated. What explains this difference? The most plausible response here is that the restriction on fighting during certain times of the year was purely conventional,261 something like a gentlemen’s agreement to keep certain months free from war. The restrictions on killing women and children, however, were not purely conventional: their normative force was based upon an intrinsic cognitive and emotional “pull.”

Furthermore, I argue that a psychological approach to humanitarian protection rules in early Islam better explains the historical and discursive evidence than does rationalism. Not only can it be shown that early Muslims, particularly Muhammad, endorsed non-combatant immunity precepts for reasons other than reciprocity, but

Muslim theorists endorsed such ideas even when they had little reason to fear that their own civilians would be killed in war. In addition, like constructivism, rationalism cannot explain why Muslims were inclined to accept some rules of pre-Islamic culture, e.g. restrictions on killing women and children, yet were willing to abandon others, e.g. the

260 Firestone (1999). 261 See Turiel (1983). 119 restrictions on when fighting could take place. Since rationalism views social norms as coordinating mechanisms, and since early Muslims had good reasons to refrain from violating the norm that fighting should not take place during the “sacred months,” it is not clear why they eventually abandoned this norm yet held onto the non-combatant immunity one. Presumably, their strategic interests changed in ways that made it rational to allow fighting during the sacred months, but one might also argue that purely strategic interests may have given them reason to abandon restrictions on killing women and children. After all, political actors often have strategic reasons to attack enemy non- combatants.262 Yet, most Muslims never abandoned the idea that women and children should not be killed, and my explanation for this is that these norms are not based upon strategic interests or reciprocity. Instead, they are based upon a universal grammar of moral discourse—a grammar that has universal cognitive content and a powerful emotional appeal.

To demonstrate these claims, in what follows I begin with a discussion of the sources of law in Islamic jurisprudence. Second, I discuss the structural-systemic and cultural backdrop of the rise of the Islamic state in the early 7th century A.D. This discussion will allow us to identify the inadequacies of structural-systemic theories and constructivism alike. Lastly, I show how my account of moral discourse explains why early Muslims endorsed the idea that certain classes of vulnerable people should not be killed in war better than rationalism. Consistent with my theoretical framework, I argue that the legal restraints on war in early Islamic civilization reflect a universal grammar of social norms and moral discourse. I then provide discursive evidence to help bolster my

262 See Downes (2008). 120 interpretation of the Islamic laws of war, and I explain how the Harmful Action model in

Tables 2 and 3 underwrite the norms of war in Islam. Given that scholars and policymakers in contemporary world politics are inclined to emphasize the differences between Islam and the West, my argument in this chapter will provide a fresh approach for thinking about how we can negotiate these important cultural boundaries. Contrary to popular thought, I show that Islam is far more similar to the modern West than many people are willing to admit.

Before moving on, a few words of caution are in order. As with most religions, it is extraordinarily difficult to identify the Islamic view on anything, including the ethics of war and peace. With respect to Islam, this consideration is even more important, seeing as the Islamic community is comprised of many sects, schisms, and legal traditions.

Being mindful of these schisms and differences—schisms and differences that go to the very heart of the Islamic community—in this chapter my comments focus mostly on the commonalities between the various sects and schools of thought in Islam, and where appropriate I note important differences. In addition, since my analysis is rooted in the early political history of Islamic civilization, I look at the politically dominant interpretations of the ethics of war, overlooking the more marginalized communities within Islam (e.g. the Kharijites). Be that as it may, it is simply not possible to represent the views of more marginalized Islamic sects given the constraints of space and time.

Yet, the analysis of Islamic law and history that I present here is more than sufficient to justify the central claims that I make in this dissertation. At the very least, my claims do show that constraints on killing in war are broadly universal, at least for advanced

121 civilizations. Finally, insofar as my analysis is restricted to early Islamic civilization, I make no major claims about how contemporary Muslims approach the ethics of war and peace. But since the Islamic community is one that is defined by its early history, my analysis is sufficient to refute the conservative idea that Islam is inherently violent.

The Sources of Islamic Law

An analysis of the laws of war in Islam must be situated within the context of a broader understanding of Islamic law. Unlike modern international law, there is no distinction between domestic law and the law of nations: in Islam, the law of war and the law of state are constitutive of an overarching legal framework.263 What is more, there is no distinction between positive law, or the “law as it is,” and natural law, or the “law as it out to be.”264 The law of Islam is a single normative framework for the governance of the lives of the faithful, a law ordained by God for the happiness and benefit of humankind and for the promulgation of social and political justice. As many scholars have noted,

Islam recognizes no distinction between religion and politics or between “church and state” as those in the West would describe it; it is in a sense a total system of law, one that regulates personal behavior and political institutions.265 As with most political, ethical, or religious communities, the law of Islam is intrinsically bound up with the history of the Islamic community, and so an understanding of Islamic law and an understanding of Islamic history are mutually supporting.

263 See Khadduri (1966) and (1955). 264 Hart (1952). 265 Johnson (1997, 16). 122

According to the traditional account, in 610 A.D., the Prophet Muhammad, who was at the time about forty-years-old, began to receive a series of divine revelations from the Archangel Gabriel. These revelations, which the Prophet would receive sporadically for the next two decades until his death in 632 A.D., were eventually compiled into a set of writings known as surahs that comprise the text of the Qur’an. Regardless of sectarian affiliation, all Muslim jurists and believers regard the Qur’an as the literal word of God as it was revealed to Muhammad. As the word of God, the Qur’an is taken as one of the primary sources of law in the Islamic faith, for both private behavior and social life, including politics and war. Unlike the Hebrew Bible, which is comprised of a narrative of the early Jewish community, the Qur’an is not written or organized into a concrete narrative structure; rather, it is composed of a series of interconnected verses. In fact, some scholars believe that the Qur’anic surahs were not written precisely as they are presented in the text that has been handed down to us. Instead, different portions of the text were revealed to Muhammad at different times of his life in response to the circumstances that confronted the nascent Muslim community.266 As the literal word of

God, the true meaning of the Qur’an is thought to far outstrip the finite cognitive capacities of even the most intelligent human beings, and so the interpretation of this sacred text has given rise to heated, and indeed often violent, debates. In spite of these disagreements, all Muslims believe that the Qur’an is the literal word of God and the primary source of law in the Islamic community.

Since the law of Islam is intimately connected to the early history of the Muslim community, the sources of Islamic law are similar in kind to the sources of social norms

266 Firestone (1999). 123 in pre-Islamic Arabia. Prior to the advent of Islam, there was no clear concept of a universal law, as we now understand it, in the tribal social structures that were dominant on the Arabian Peninsula. As I discuss in more detail in the following section, pre-

Islamic Arabia was, with the minor exception of the Southern regions (modern-day

Yemen and Oman), almost completely anarchic. The dry, desolate landscape placed a natural constrain on agricultural productivity, which in turn made the development of complex social structures and state bureaucracies almost impossible.267 Consequently, there were few centralized political structures prior to the economic developments in the

Western region that facilitated the emergence of the Islamic state. This meant that the peoples of these regions likely did not think about issues of justice in a way that transcended the boundaries of the tribe. As historian Fred Donner notes

The absence of a state in North Arabia is visible….in the absence of any overriding concept of law binding beyond, or even within, the limits of the tribe. Power relationships were simply a question of the strength of one individual against another, and they were hardly affected by notions of justice enshrined in a system of laws. That is to say, there was no law in the sense of an abstract principle of justice against which one could judge the individual claim, nor any acceptance of the notion that such a generalized set of regulations could be binding on the individual.268

In the absence of a universal notion of justice and in the absence of sovereign political structures that could enforce laws, social order was maintained through customary traditions known as the sunna. As a society centered on tribal identities, social expectations were based upon these customary norms, and although there was no

267 Donner (1981). 268 Donner (1981, 39). 124 centralized state structures to enforce them, tribal leaders made their “decisions on the basis of custom,” which were in turn “enforced by tribal public opinion.”269

Although Islam revolutionized politics and law in Arabian society, it did continue the tradition of basing social norms and ethical codes on customary traditions. Yet it added a twist: instead of regarding all social traditions as normative, the Muslim community gradually came to regard the sayings and practices of the Prophet himself as uniquely binding sources of law in their own right. In addition to the Qur’an, then, the second major source of law in the Islamic community is the sayings and practices of the

Prophet Muhammad, which are referred to as the sunna. When Muhammad died in 632

A.D., the sunna took on an added significance because it provided believers with additional insight into the meaning of Qur’an and into the nature of appropriate behavior and rightful law.270 As religious historian Reuven Firestone points out

The Qur’an…remained as a guide, but the fixed text of the Qur’an could not answer all the questions that naturally arose within the new Muslim community with regard to proper religious ritual, personal behavior, and law. No more direct divine guidance was forthcoming, so Muhammad’s surviving companions tried to understand the meanings of Scripture as best they could. Without a direct scriptural answer to the many queries that were made regarding a wide range of issues, early Muslims naturally looked also to the acts and statements of their recently deceased prophet as models according to which Islamic behavior could be molded.271

In Islamic theology, Muhammad is looked upon as the last of a venerable line of divinely anointed messengers who were sent to set humanity onto the path of God—a line of messengers that includes Moses and Jesus Christ. As the chosen messenger of God’s final revelation to humanity, Muhammad is the central figure in Islam; this centrality is

269 Khadduri (1955, 21). 270 Firestone (1999). 271 Firestone (1999, 93). 125 reflected in the fact that his everyday sayings and practices are interpreted as a source of law. The acts and sayings of the Prophet are related through what are known by Muslim jurists as hadiths or “traditions.” For the first century after the death of the Prophet, these reports were passed on through an oral tradition, and in this way they were “preserved in the hearts and minds of Muhammad’s surviving contemporaries and their descendants and students.”272 Since these reports were often fabricated to support the parochial interests of specific groups, Muslim legal scholars eventually developed an elaborate system for distinguishing authentic reports from untrustworthy ones, and they set down the former in writing.

The prescriptive statements of the Qur’an and the sunna of the Prophet constitute what historian Mohammed Kamali refers to as the “nucleus of the Shariah.”273 The term

“al-shariah” literally means “the rightful path” or “the path of righteousness,” and

Muslim jurists believe that acting in accordance with the directives of God will lead to happiness in this life and in the life that follows.274 Because the Qur’an and the sunna do not address every issue that may arise in the life of the Muslim community, however, some scholars argue that independent legal reasoning should be regarded as a source of law. In Kamali’s view

The non-revealed sources of Shariah are generally founded in juristic reasoning (ijtihad). This reasoning can take a variety of forms, including analogical reasoning (qiyas), juristic preference (istihsan), considerations of public interest (istislah), and even general consensus (ijma) of the learned, which basically originates in ijtihad and provides a procedure by which a ruling of juristic reasoning can acquire the binding force of law. Analogy and consensus have been generally recognized by the vast majority of ulama, but there is

272 Firestone (1999, 94). 273 Kamali (1999, 108). 274 Kelsay (2007, 44). 126

disagreement over the validity and scope of many of the rational proofs that originate in ijtihad.275

Since the Qur’an and the sunna are regarded as the primary sources of law in Islam, all

Muslims regard them as normatively binding. The major differences between the various approaches to Islamic law generally concern whether independent human reasoning should be a source of law in its own right.

Later on in this chapter, I discuss Islamic views on the ethics of war and peace, and most of my evidence is derived from prescriptive statements in the Qur’an and various reports on the sunna of the Prophet. Although I am not qualified to interpret the meaning of the Qur’an and the sunna, I justify my arguments by reference to the work of prominent Muslim jurists on the laws of war; I also use secondary sources to back up my claims. Before analyzing the laws of war, however, I need to address the historical and cultural factors that led to their emergence in 7th century Arabia and the Middle East. In order to evaluate my argument about the grammar of moral discourse and to compare it with competing accounts of international norms, I must show that structural-systemic or materialist theories are insufficient to explain the emergence of humanitarian protection norms in early Islamic society. The laws of war in Islam were certainly influenced by structural-systemic and cultural factors, but as I demonstrate below these factors did not determine their development. In the next section I outline the history of Islam, focusing primarily on the rise and expansion of the Islamic imperial state.

Pre-Islamic Arabia and the Formation of the Islamic State

275 Kamali (1999, 118). 127

In the previous chapter, our discussion of the ethics of war in Ancient China led us to the conclusion that the formation of the territorial state was the structural-systemic factor responsible for the emergence of humanitarian ideas regarding the use of military force. While the rise of the Islamic state on the Arabian Peninsula and its expansion throughout much of the modern Middle East is intimately related to the development of

Islamic law, not to mention the Islamic laws of war, it is a mistake to view these norms as an outgrowth of structural factors. The Islamic laws of war were really an Islamicized version of preexisting cultural norms,276 and so it is wrong to view Islamic state formation as their structural cause. State structures and imperial law may have facilitated their articulation and development, but the process of state formation did not bring them about in the same way as it did in Ancient China. Consequently, a structuralist or systemic account of the norms of war is not adequate, unless, of course, if we endorse an account based upon ad hoc factors. To explain why Islamic peoples adopted restrictions on the use of armed violence, therefore, additional considerations must be brought to bear. To better understand the social context that facilitated the rise of Islamic law, in this section I discuss the historical and cultural background of the Islamic state.

The Prophet Muhammad was a member of the Quraysh tribe that was dominant in the central-Western region of the Arabian Peninsula in the area surrounding Mecca. Prior to the founding of Islam, political life in the Arabian Peninsula varied largely by region.

In Southern Arabia, climatic conditions favored highly productive agricultural practices and intensive farming techniques, and the resulting material prosperity aided the

276 Donner (1991). 128 emergence of “an independent South Arabian civilization.”277 In this region, sedentary peoples with social structures that were similar in kind to modern states and kingdoms dominated political life. In regions of the Arabian Peninsula that did not favor highly productive agricultural practices, i.e. central and northern Arabia, there were no centralized states. In these areas, the economy was far too “underdeveloped” to support the kinds of administrative and military groups that are necessary to support a functioning state apparatus.278 Hence, Islamic civilization emerged in a highly fragmented social and political context.

Political life in much of pre-Islamic Arabia was centered on tribal structures, and as such the definitive locus of individual identity was with one’s tribe. In spite of this fact, life was far from uniform, and according to most historians there were three kinds of tribal groups. Depending on the level of agricultural productivity and the availability of water supplies, some regions supported small oasis towns there were often inhabited by sedentary tribes. In many places throughout the peninsula, however, there were nomadic tribes who survived mostly on herding sheep, goats, and camels.279 In between these two extremes were tribes that Donner refers to as “semi-nomads who practiced both settled agriculture and nomadic pastoralism in varying degrees depending upon the conditions under which they had to live.”280

Due to the subsistence level economy that prevailed in much of Arabia, the nomadic tribes often engaged in the practice of raiding, and as a result they often extolled

277 Donner (1981, 12). 278 Donner (1981, 39). 279 Donner (1981, 14-16). 280 Donner (1981, 16). 129 martial virtues such as bravery and heroism. Like some of the more nomadic tribes that dominated the Southern Plains in early America, Bedouin tribesmen tended to denigrate the sedentary lifestyle.281 The nomadic tribes were by far the most powerful of all the tribes that lived in the Arabian Peninsula prior to the advent of Islam. Given their immense military power, these tribes often operated as protection rackets that sought payment for “services” rendered to the weaker tribes.282 Some scholars even argue that the need to gain control over the nomads living on the fringes of Arabia was a central concern for the elites of the rising Islamic state and that it induced them to expand their range of operations and control into Syria and Iraq.283 On the one hand, the power that these tribes wielded made them inherently difficult to control, and as a result the elite actors who controlled the early Muslim state concluded that the state would not survive unless it gained control over them. On the other hand, subduing the nomads on the fringes of the burgeoning state also brought the Muslims into greater contact with the

Byzantine and Sasanian Empire. But when they came into contact with these two settled empires, having more control over nomads did give them access to militarily powerful groups that could aid in the expansion of Islam.284

Although some Westerners portray Islam as a pre-modern religion, perpetually stuck in the past, from the perspective of a Western, modernist ideology, Islam was actually something of a “civilizing force” on the Arabian Peninsula. This is so for two primary reasons. First, Islam presented early Arabs with a unifying political ideology

281 See Gwynne (2010) and Firestone (1999). 282 Firestone (1999, 30-34). 283 Donner (1981, 267-271). 284 Donner (1981, 89-90). 130 that enabled them to create a consolidated state structure in a thoroughly anarchic environment.285 To be sure, the evidence seems to indicate that the central elements of the Islamic state did not take shape until about 685-705A.D., but Muhammad and his successors do seem to have been intent upon consolidating and expanding their domain of political control to the entire peninsula and its surrounding regions, if not the entire known world at the time.286 Secondly, Islam also injected a universalistic conception of law and social identity into a tribalistic society centered on ties of kinship loyalty.287

What does all this have to do with humanitarian protection norms? The early history of Islam suggests that although the rise of the Islamic state was important for the development of legal and social institutions in the early Middle East, it did not bring these norms into existence. In fact, evidence culled from extant Bedouin literature indicates that “attacking non-combatants with lethal intent, for example, was considered bad form and generally avoided.”288 While it is not clear whether this nascent non- combatant immunity norm had the selfsame meaning that it later had for classical Islamic jurists, it did create a bedrock of cultural knowledge from which the Islamic laws of war eventually emerged. At the very least, the evidence shows that this unwritten normative code did not arise from the process of state formation as it did in the case of early China, for the rise of the Islamic state clearly post-dated the emergence of a conception of non- combatant immunity. Since state formation was relevant for the emergence of civilian

285 Donner (1981). 286 Donner (1986, 293). 287 Donner (1981). 288 Donner (1981, 34). 131 immunity in Ancient China, a structural theory of humanitarian protection norms is not adequate.

But this does not mean that the rise of Islam was irrelevant for the development of the norms of warfare. Indeed, the development of Islam was important because it changed what people fought for. In the materially desolate terrain of pre-Islamic Arabia, the use of violence was defined by highly materialist ends like gaining access to scarce resources or increasing the political influence of one’s tribe. Raiding was a fairly common, legitimate way of getting by in this difficult climate, and the only major restrictions on raiding consisted of norms that prohibited attacks on one’s own tribal affiliates.289 The highly legalistic, unifying doctrine of Islam, however, changed all of this. At least on the official view, Islam led people to gradually abandon the idea that wars should be fought for materialistic ends like wealth, power, or territory in favor of the idea that it should be fought for religious or normative ends. Also, by promulgating a universal, religious ideology that transcended the ties of tribal loyalties, Islam made it possible for people to conceive of their social relationships in a way that could in principle be expanded to include the whole of humankind.290 To be sure, Islamic law and scholarship does posit a fundamental difference between believers and non-believers, but the social boundaries between believers and non-believers are not rigid barriers that can never be crossed. Finally, Islam ushered in the idea that individual behavior should not simply be judged by the norms of one’s tribe but that it should be judged by reference to

289 Firestone (1999, 34-35). 290 Donner (1981). 132 an impartial system of laws backed up by divine authority.291 This last innovation is highly important for understanding the laws of war in early Islam since it implies that all social and political behavior, including the use of violence in war, should be judged by reference to universal standards of law. Hence, rather than creating the laws of war from the ground up, the Islamic state constructed a system of divinely-inspired law that was built up from the ashes of the tribal culture that it largely superseded.

With the advent of Islam in the early 7th century A.D., the fragmented political system on the Arabian Peninsula underwent a drastic transformation. As a result of the religious teachings of the Prophet Muhammad, not to mention his political and military acumen, the fragmented societal structure of the pre-Islamic system in Arabia was gradually consolidated into a centralized system of governance. In the following section,

I spell out how Islamic jurists approached the ethics of warfare and violence.

Warfare and Violence in Islamic Law

As I demonstrate in the following chapter, Euro-Christian just war theorists believed that the use of violence must be restrained by reference to an overarching conception of justice and peace. The theory of the just war is usually broken up into two components: (1) the jus ad bellum (“right to war”) principles that regulate when political actors can go to war; and (2) the jus in bello (“justice in war”) principles that regulate the conduct of military commanders and soldiers. Among the most significant components of the jus ad bellum principles of the just war tradition holds that wars are only permissible when they are motivated by a just cause, which is generally defined as self-

291 Donner (1981, 57-60). 133 defense against an unjustified attack or punishment for a previous injustice. The use of violence also needs to be a necessary last resort, and it needs to be governed by a rightful authority. The major jus in bello principles regulate the treatment of enemy soldiers, civilians, and prisoners of war. With some important variations, the same basic principles are reflected in the Islamic approach to the laws of war, and to interpret the norms of war in early Islam I use three sources: the Qur’an, the sayings and practices of the Prophet, and the writings of eminent legal scholars. For ease of exposition, I organize my discussion using the distinction between jus ad bellum and jus in bello precepts.

“Jus ad Bellum” Principles

In medieval Islam, the political world was viewed as being constituted by two basic realms: the dar al-Islam (the land of Islam) and the dar al-harb (the land of war), a distinction that is crucial for understanding the legal justification of war.292 Although the

Qur’an does not mention the distinction between the dar al-Islam and the dar al-harb, classical Muslim jurists developed these categories as a way of dealing with extant political and juridical realities.293 Reflecting the territorial domain of the Islamic community, the term dar al-Islam referred to any land that was under the sovereignty of the Islamic legal system, and it was comprised of any community, Islamic or not, that accepted the authority of the Muslim caliph.294 The term dar al-harb, on the other hand referred to any land that was not under the sovereign authority of the caliph. In spite of the connotation of the term, these lands were not always in actual conflict with the dar al-

292 Johnson (1997) and Khadduri (1966). 293 Khadduri (1966). 294 Khadduri (1966). 134

Islam. As I mentioned earlier, at the time of its inception Islam was similar in kind to

Christianity in the sense that it was intent upon realizing a divine mandate to bring peace and justice to the rest of humankind. To that extent, the “goal” of Islam was ultimately to subsume the dar al-harb into the dar al-Islam; the mechanism for doing this was jihad.295

Although it is frequently identified with the concept of holy warfare, the term jihad actually connotes the idea of striving in the path of God,296 and so it is more closely associated with the Western European notion of the just war, at least under the religious interpretation of the just war tradition. Yet, the notion of jihad does not simply connote war and violence, and indeed there are four basic ways to exercise this important duty: by the heart, by the tongue, by the hands, or by the sword. The use of military force is only one way to bring about the ultimate objective of Islam, and it was not always the most favored mechanism.

The jihad, in the broad sense of the term, did not necessarily call for violence or fighting, even though a state of war existed between Islamic and non-Islamic territories, since Islam might achieve its ultimate goal by peaceful as well as violent means. The jihad was equivalent to the Christian concept of the crusade, or war of words, as well as the sword.297

In fact, in a well-known hadith, the Prophet Muhammad is said to have claimed that

“exertion of force in battle is a minor jihad, whereas ‘self-exertion in peaceful and personal compliance with the dictates of Islam (constitutes) the major and superior jihad;’ ‘the best form of jihad is to speak the truth in the face of an oppressive rule.’”298

295 Khadduri (1966, 16). 296 See Khadduri (1966, 16) and Kelsay (2007). 297 Khadduri (1966, 15). 298 Ali & Rehman (2005, 330). 135

Both of these statements indicate that the use of violent force has a lesser moral status than more peaceful ways of striving in the path of God.

There has been much debate, in Islamic scholarship and in secondary literature, over whether the instigation of a legitimate war must be offensive or defensive in nature.

At the very least, the evidence clearly indicates that most Islamic jurists were in favor of allowing defensive war. Indeed, some passages in the Qur’an seem to suggest that the only legitimate form of violence is defensive in nature.

And fight in the way of Allah with those who fight with you, and do not exceed the limits, surely Allah does not love those who exceed the limits. And kill them wherever you find them, and drive them out from whence they drove you out, and persecution is severer than slaughter, and do not fight with them at the Sacred Mosque until they fight you in it, but if they do fight you, then slay them; such is the recompense of the unbelievers. But if they desist, then surely Allah is forgiving, merciful. And fight with them until there is no persecution, and religion should be only for Allah, but if they desist then there should be no hostility except against the oppressors.299

Another passage makes a similar claim about defensive war:

Permission (to fight) is given to those upon whom war is made because they are oppressed, and most surely Allah is well able to assist them. Those who have been expelled from their homes without a just cause except that they say: Our Lord is Allah. And had there not been Allah’s repelling some people by others, certainly there would have been pulled down cloisters and churches and synagogues and mosques in which Allah’s name is much remembered; and surely Allah will help him who helps His cause; most surely Allah is strong, mighty.300

On the other hand, some passages clearly seem to call for offensive military action as well:301

Fight those who do not believe in Allah, nor in the latter day, nor do they prohibit what Allah and His Apostles have prohibited, nor follow the religion of truth, out

299 Qur’an 2:190-193. 300 Qur’an 22: 39-40. 301 See Johnson (1997, 62). 136

of those who have been given the Book, until they pay the tax in acknowledgement of superiority and they are in a state of subjection.302 O you who believe! Fight those of the unbelievers who are near to you and let them find in you hardness; and know that Allah is with those who guard (against evil).303

Regardless of which side one takes in this debate, the use of military force was not something that Islamic jurists took lightly, and indeed the use of force had to be somehow tied to the divinely ordained purpose of correcting wrongdoing or establishing or expanding the domain of an Islamic state.304 Even on the more expansionist interpretations of Islam, the use of violence is always thought to be subservient to the ends of “calling human beings to Islam:” not only are Muslims permitted to use violence to defend the dar al-Islam when it is attacked, but in addition legitimate violence must in some sense be reciprocal or punitive—it is a reaction to the wrongful actions of non-

Muslims.305

In the Christian just war tradition, it is an accepted fact that only certain individuals or groups are permitted to make decisions regarding war, namely the leaders of a just political community. As James Johnson points out, the reason for this is that it allows us to be confident that a particular war is morally justified: “such authority ensures that the warrants for war are sufficient and have been properly interpreted; it establishes a substantive link between war and the power, blessings, and/or moral obligations associated with religion; and it makes clear whose decisions are to be regarded as final in

302 Qur’an 9: 29. 303 Qur’an 9: 123. 304 See Kelsay (2006, 88) and Hashmi (2002, 204-210). 305 Kelsay (2006, 88). 137 waging the war.”306 Something similar can be said about the Islamic theory of legitimate war. In Islam, the Prophet Muhammad was regarded as a divinely guided political and religious leader who possessed the authority to engage in war for the sake of the community.307 When the Prophet died in 632 A.D., the leadership of the Islamic community was taken over by the Muslim caliph. According to the Sunni tradition, the

Prophet did not appoint a successor, and as a result his followers quickly selected Abu

Bakr “as the first khalifa, ‘deputy,’ of the Prophet.”308 Some rejected this claim, believing that Muhammad had selected a successor, namely his son-in-law Ali, and the followers of this view eventually broke off into a distinct religious faction known as

Shi’ism. In both versions of Islam, however, the use of violence must be undertaken by a legitimate authority, which was defined in terms of religion.309

Early Muslim jurists believed that the use of force had to be preceded by peaceful diplomacy and persuasion. Consequently, legitimate authorities were legally required to invite non-Muslims to accept the truth of Islam before going to war. The Hanafi jurist

Muhammad ibn al-Hasan al-Shaybani, who some European legal theorists have labeled the Hugo Grotius of Islam for his work on the Islamic law of nations, makes the following point:

If the army [of Islam] attacks the territory of war and it is a territory that has received an invitation to accept Islam, it is commendable if the army renews the invitation, but if it fails to do so it is not wrong.310

306 Johnson (1997, 77). 307 Johnson (1997, 93). 308 Denney (1994, 83). 309 Johnson (1997, 96). 310 Khadduri (1966, 95). 138

Likewise, Muslim jurist Al-Mawardi claimed that it is wrong to launch attacks on peoples who have not yet received the call to Islam:

We are forbidden to launch surprise attacks on such people and kill them or burn their property, for we may not initiate action against them before inviting them first to Islam, making the Prophet’s miracles known to them, and informing them of such arguments as would make them respond favorably. Should they persist in their unbelief after such evidence is shown them he [i.e. a war commander] should fight them, for they are from his standpoint in the same class as those who have received the call.311

Hence, this shows that Muslim jurists believe that political violence is a necessary last resort for achieving an end that they regard as otherwise legitimate, i.e. calling non-

Muslims to the truth of Islam.

“Jus in Bello” Principles

In spite of the fact that Islam is often regarded as a violent religion that encourages its followers to attack enemy non-combatants, Islamic law directly prohibits the intentional killing of civilians. In the Qur’anic passage cited above, the faithful are commanded to “fight in the way of Allah with those who fight with you, and do not exceed the limits, surely Allah does not love those who exceed the limits.”312 According to the dominant interpretation of Islamic law, the reference to exceeding “the limits” in this verse refers to the limits imposed on individual action by the sayings and customs of

Muhammad.313 In a well-known hadith, it was reported that Muhammad disapproved of

311 Al-Mawardi (1996, 40). 312 Qur’an 2: 190. 313 Hashmi (2002, 210), Firestone (1999), and Bonner (2006). 139 intentional attacks on women and children.314 Indeed, at the beginning of his treatise on the Islamic law of nations, al-Shaybani cites a saying of Muhammad:

Whenever the Apostle of God sent forth an army or a detachment, he charged its commander to personally fear God, the Most High, and he enjoined Muslims who were with him to do good [i.e. to conduct themselves properly].

And the Apostle said: “Fight in the name of God and in the ‘path of God,” [i.e. truth]. Combat [only] those who disbelieve in God. Do not cheat or commit treachery, nor should you mutilate anyone or kill children. Whenever you meet your polytheist enemy, invite them [first] to adopt Islam. If they do so, accept it, and let them alone….315

This saying is often interpreted as enjoining Muslim fighters to act in accordance with a rule that forces them to distinguish between combatants and non-combatants. In

Islamic jurisprudence, deliberate attacks on women, children, the aged, and the infirm run directly counter to a Prophetic injunction, and hence they are always unlawful. Similar claims were made by Abu Bakr, the first successor to Muhammad, before sending his troops off to battle:

Do not act treacherously; do not act disloyally. Do not mutilate; do not kill little children or old men, or women; do not cut off the heads of palm-trees or burn them; do not cut down the fruit bowl trees; do not slaughter a sheep or a cow or a camel, except for food. You will pass by people who devote their lives in cloisters; leave them and their devotions alone. You will come upon people who bring you platters in which are various sorts of food; if you eat any of it, mention the name of God over it.316

The general reason for distinguishing between men, women, children, and the elderly lies in the fact that women, children, and the elderly generally do not take up arms in battle.317 When individuals who fall into any of these categories do take up arms against

314 Khan (1993, 159). 315 Khadduri (1966, 75-77). 316 Quoted in Hashmi (2002, 211). 317 See Kelsay (2007). For an alternative view, see Johnson (1997). 140

Muslim soldiers, they lose their status of immunity. As Islamic jurist al-Mawardi notes,

“killing women and children is not permitted in war or otherwise so long as they do not fight, owing to the Prophet’s injunction against killing them.”318 Although this does point to an important similarity between medieval Islamic law and contemporary international law, it should be kept in mind that the distinction between combatants and non-combatants is not based upon any notion of human rights. After all, al-Shaybani believed that it is permissible for the Imam to kill captive males, i.e. prisoners of war, in enemy territory if he “deems it to be advantageous to the Muslims.”319

These considerations indicate that Muslim legal scholars believed that killing enemy non-combatants, namely women, children, and the elderly, and in my view they suggest that the precepts of the Harmful Action model did influence the Islamic norms of war, specifically Principles 1 and 3. What about the notion of proportionality? Although

Islamic jurisprudence does recognize some notion of civilian immunity, Muslim scholars did recognize that non-combatants are often killed in war and that specific rules must be identified that can allow military commanders to discern lawful from unlawful strategies and tactics. Evidence suggests that some Muslim scholars did place a higher moral valence on intentional harms as opposed to unintentional harms and that this influenced how they thought about the morality of intentional violence. Al-Mawardi claimed that

“there are three classes of homicide: intentional killing, unintentional killing or manslaughter, and quasi-intentional killing.”320 Depending on the circumstances, retaliatory attacks are permitted in the case of murder, but in the case of manslaughter the

318 Al-Mawardi (1996, 45). 319 Khadduri (1966, 100). 320 Al-Mawardi (1996, 251). 141 victim’s consociates are only entitled to “legal compensation rather than retaliation.”321

Since he sanctions a stricter response to intentional killing, this suggests that the mental element of intent is morally critical here. With respect to the norms of armed violence,

Islamic scholars generally argue that intentional attacks on non-combatants are unlawful.

Attacks that incidentally lead to the deaths of non-combatants are permitted just in case they are “proportionate to the military objective.”322

In his Siyar, al-Shaybani makes several statements suggesting that the notions of intentionality and proportionality are relevant for his understanding of the ethics of armed violence. In a supposed dialogue between himself and his mentor, Abu Hanifa, he makes the following points:

I asked: Do you think that the blind, the crippled, the helpless insane, if taken prisoners of war or captured by the warriors in a surprise attack, would be killed?

He replied: [No], they should not be killed.

I asked: Would it be permissible to inundate a city in the territory of war with water, to burn it with fire, or to attack its people with mangonels even though there may be slaves, women, old men, and children in it?

He replied: Yes, I would approve of doing all of that to them.

I asked: Would the same be true if those people have among them Muslim prisoners of war or Muslim merchants?

He replied: Yes, even if they had among them [Muslims], there would be no harm to do all of that to them.

I asked: Why?

He replied: If the Muslims stopped attacking the inhabitants of the territory of war for any of the reasons that you have stated, they would be unable to go to war at

321 Al-Mawardi (1996, 251). 322 Kelsay (2007, 106). 142

all, for there is no city in the territory of war in which there is no one at all of these you have mentioned.

I asked: If the Muslims besieged a city, and its people [in their defense] from behind the walls shielded themselves with Muslim children, would it be permissible for the Muslim warriors to attack them with arrows and mangonels?

He replied: Yes, but the warriors should aim at the inhabitants of the territory of war and not the Muslim children.

I asked: Would it be permissible for the Muslims to attack them with swords and lances if the children were not intentionally aimed at?

He replied: Yes.

I asked: If the Muslim [warriors] attack [a place] with mangonels and arrows, flood it with water, and burn it with fire, thereby killing Muslim children or men, or enemy women, old men, blind, crippled, or lunatic persons, would the [Muslim warriors] be liable for the diya (blood money) or the kaffara (expiation or atonement)?

He replied: They would be liable for neither the diya nor for the kaffara.323

This fictional exchange between mentor and student suggests that al-Shaybani did sanction military attacks that would lead to the deaths of civilians, both on the Muslim side and the enemy side. However, as John Kelsay points out, it “would be quite wrong…to read such a passage as negating respect for the immunity of non- combatants.324 Indeed, al-Shaybani explicitly argues that civilian deaths are permissible just in case they are not intentional. Otherwise, the presence of a single civilian could prevent the Muslim army from undertaking what is presumed to be a legitimate war. Al-

Mawardi defends a similar claim:

If enemy troops shield themselves behind their women and children as they are getting killed, killing the women and children should be avoided, unless killing them is not possible without killing the women and children. If, on the other

323 Khadduri (1966, 101-102 324 Kelsay (2006, 93). 143

hand, they shield themselves with Muslim captives, and they could not be killed without killing the captives, they should not be killed. If leaving them along leads to their surrounding the Muslims, the latter should try their best to get rid of them, taking care not to kill intentionally a Muslim who is in their hands. If such a Muslim gets killed, his killer has to pay blood-money and make expiatory amends if he knew of his being a Muslim, and the expiation alone if he did not.325

In this passage, the idea of proportionality is implicit. In a war that is otherwise morally justified, military commanders are required to refrain from attacks that threaten innocent human lives unless it is not possible to do so. The moral good of winning the battle is to be weighed against the moral bad of killing innocent women and children. If it is not possible to win the war without killing innocent women and children, a Muslim commander may use strategies that (unintentionally) lead to their deaths. Interestingly, in a statement that shows how considerations of collective identity are important for humanitarian protection norms, if a Muslim is knowingly killed in an attack, a commander is required to pay blood-money and to make expiatory amends.

Why Prevent Attacks on Civilians? Rationalism and the Grammar of Moral Discourse

The evidence adduced thus far shows that early Muslim jurists believed that the use of violence must be constrained by humanitarian protection norms like that of civilian immunity. In this section I defend my claim that these norms are most likely the result of a similar psychological structure. But since it is not possible for me to go back in time and conduct psychological experiments on the Prophet Muhammad, his followers, or classical Muslim scholars, how do I propose to generate any evidence for my argument?

325 Al-Mawardi (1996, 45). 144

Discursive evidence from sacred texts and philosophical treatises can tell us whether people endorsed certain normative precepts, but they cannot tell us why they endorsed them. This issue is intrinsically difficult to resolve, and I can only hope to scratch the surface of a plausible response. The most tractable way around a problem like this is to set up a test between my claim about universal psychological structures and the reigning accounts of social norms in political science. We can only validate a particular theory by comparing it with other theories, and so this way of moving forward is entirely consistent with standard practice in social science.

Since we have already addressed structural-systemic and materialist theories in previous sections, and since my comparison of culturally diverse anarchic systems shows why constructivist theories are misguided, here I address rationalism. Using the early experiences of the Muslim community as my evidentiary basis, mainly those experiences surrounding the initial rise of Islam, I claim that the universal grammar theory of discourse and norms better explains the empirical evidence than the major paradigms of

IR theory.

Why Rationalism is Problematic

If political actors create humanitarian protection norms on the basis of expected- utility calculations, then we should expect to observe three categories of confirming evidence. First, actors should only create civilian protection norms out of a concern for their own civilians and they should not endorse them unilaterally. The laws of war should be mere coordinating mechanisms that have no intrinsic normative pull on their

145 own. Second, the discursive evidence should indicate that actors converged on such norms via a cost-benefit calculation whereby alternative rules were expressly considered or tried and ultimately rejected. The generative grammar theory of discourse and norms offers an altogether different set of observable implications. If humanitarian protection rules arise from the “arational” psychological precepts in Tables 2 and 3, then the discursive evidence should show that the principle of distinction is not a mere coordinating mechanism. Actors should speak and talk about such principles as inherently normative regardless of whether other people adopt or uphold them. It is not as if people converge on the norm to get them out of a collective action problem; it is part of the intrinsic cognitive repertoire that they bring to social interaction. Second, this account holds that moral claims do not arise from explicit chains of reasoning about costs and benefits; instead they emerge from relatively intuitive, snap judgments. Since this model of action regards the civilian immunity norm as an outgrowth of mental structures rather than explicit cost-benefit calculations, it expects to see few signs of actors considering other norms that may have similar outcomes.

With respect to the laws of war, rationalists would argue that the Prophet and his immediate successors, along with most of their followers throughout the history of

Islamic civilization, chose to legally restrain the use of violence against civilians (women and children to be precise) to help achieve their material interests. Since they all had an interest in making sure that their own civilians were not needlessly slaughtered or mutilated, they had reasons to hold their own soldiers to a similar standard. Though there

146 were no international treaties in the way that we think of them now, James Morrow’s comments on international treaties for the laws of war are useful to consider:

Political institutions that persist both induce stable patterns of behavior and are stable against replacement by alternative institutions…they both induce equilibria and are equilibrium institutions. Equilibria in game theory require two conditions: one, that the actors’ strategies are mutual best replies, and two, that actors share a common conjecture that they will play that specific equilibrium. Agreement on normative standards generally and treaties specifically can be thought of as being captured in the common conjecture. They matter when they induce a pattern of behavior that a different agreement would not. Compliance then is a property of the equilibrium behavior that institutions induce in actors…. Reciprocity is a tool of enforcement when one side breaches an agreed standard. States that violate treaty standards that both sides have publicly accepted should be more likely to face reciprocal responses by their opponents. Clear legal standards reinforce reciprocal enforcement by clarifying what acts constitute violations and which do not. States should be more likely to respond to violations that breach these legal “bright lines” than to acts that are not clearly illegal.326

This account of the laws of war clearly presumes that agents create humanitarian protection norms as coordinating mechanisms to induce stable equilibria. Political leaders generally prefer to minimize the costs of war, and so they create such norms to help facilitate reciprocity. As legal scholar Eric Posner claims “the particular norms of jus in bello can be understood as descriptions of equilibrium outcomes; they provide focal points that minimize the risk that cooperation breaks down because states misinterpret each other’s actions….The cooperative outcome can be sustained only if each state credibly threatens to retaliate in response to violations. Thus, the threat of non- compliance must be every present.”327

Although rationalism gives us a parsimonious way to explain why political actors might choose to design specific norms of war and why they might promulgate norms that

326 Morrow (2007, 561). 327 Posner (2010, 4). See also Posner (2003). 147 restrict military violence against civilians, it does not withstand sustained empirical scrutiny in the case of early Islam. Not only does the extant discursive evidence indicate that the Prophet Muhammad and his followers were primarily concerned about divine justice rather than pure self-interest, but in addition the concrete circumstances that surround the promulgation of the norms of warfare in Islamic law do not cohere with the kinds of causal factors that rationalism endorses. Crucially, rationalism presumes that the laws of war are coordinating mechanisms, and this means that actors only see reasons to follow them if others do as well. As I mentioned in Chapter 1, rational choice theory views norms as social conventions, or relatively arbitrary rules that people create to overcome collective action problems. If no one else follows a social convention, then there is no reason to follow it in the first place. Unfortunately for rationalism, moral norms like the civilian immunity principle are seen as inherently normative: people perceive reasons to follow it regardless of what others do. To test this rationalist interpretation, I consider the early evolution of the laws of war in the Islamic community in the 7th century A.D.

As a number of scholars have pointed out, and as I have discussed above, the

Qur’an contains seemingly contradictory passages on the ethics of war and peace. In some verses, it enjoins Muslims to be patient in the face of persecution or oppression and to engage only in acts of non-violent resistance, or what might now be called “civil disobedience.” Other verses, however, seem to suggest unlimited warfare against unbelievers, even in situations where unbelievers do not seem to be guilty of posing a direct and present threat to the interests or lives of Muslims. Since the Qur’an is regarded

148 as the literal word of God, and since God is eminently rational and knowledgeable, it is taken for granted that it cannot possibly contradict itself. Therefore, throughout the history of Islamic civilization, jurists and theologians have attempted to interpret the

Qur’an in ways that minimize these apparent contradictions.328 According to the dominant interpretation, Muhammad received these verses at different periods in the early history of the Muslim community, and they were more or less pacifistic (or militant) depending upon the concrete social conditions facing the Muslims. In the early stages when the community had very little power, Muhammad received those verses that required patience in the face of oppression and adversity; in the later stages as their power began to grow, the verses became more militant. Muslim scholars thus often hold that the later verses reveal legal prescriptions that are more enduring and eternal, and therefore these verses abrogate the earlier more peaceful strains.329 The growing power of the Muslim community should have led them to become more lax about the treatment of enemy non-combatants and it should have led them to become more militant or to disregard earlier prescriptions on killing civilians. If actors create norms to suit their preferences, and if they only do so out of a concern for reciprocity and a concern that others might attack their own civilians, then a drastic increase in their power will likely lead them to overlook such concerns. If they have the power to disregard constraints on how civilians should be treated, then we should expect them to disregard them. Yet, the

328 Firestone (1999) and Bonner (2006). 329 Firestone (1999) and Bonner (2006). 149 verses in the Qur’an on “exceeding the limits” are still generally interpreted as enjoining some level of respect for the lives of non-combatants.330

To understand this argument, a few comments on the development of the Qur’an and the sunna need to be placed in their proper historical perspective. According to the traditional interpretation, Muhammad began receiving revelations from God in about 610

A.D. while he was still living in Mecca. At the time, Mecca was under the control of the

Quraysh, the tribe of which the Prophet was a member, and the dominant religious ideology of the time was polytheism. Hence, the religious doctrine that Muhammad preached when he began to receive revelations was anathema to the religious views of the

Quraysh, and as a result Muhammad and his followers were subjected to intense persecution.331 In some cases, Muslims fled to areas of North Africa to escape oppression.

In spite of this intense persecution, Muhammad initially enjoined his followers to refrain from using violence against the Quraysh and to endure the hardships with patience. He only allowed them to engage in acts of civil disobedience to the reigning authorities. According to the “evolutionary view” of jihad,332 the reason why he did not allow acts of violence against the authorities lies in the relative weakness of the Muslim community. Any attacks on the Quraysh in response to persecution, it was feared, could ignite even more persecution against the fledgling community. Such a view on the legitimacy of violence is entirely explicable from a rational choice perspective since it

330 Firestone (1999). 331 Bonner (2006), Firestone (1999), and Donner (1981). 332 Firestone (1999). 150 seems that here Muhammad judged the costs of using violence against the ruling elite to be too far too high.

However, in 622 A.D., Muhammad and a group of followers made the famous move to Medina known as the hijra. The hijra is important for a number of reasons, and it remains a highly significant event in Muslim historiography. For our purposes, the hijra was important because it provoked a decisive break with the past and it altered the way that the Muslim community approached the ethics of war and peace. The hijra signaled the end of the more pacifistic strain of Muslim thinking on war and peace, and it also facilitated the development of a more militant approach to politics and religion.

Since Muhammad was accepted by the Medinans to help manage a feud that had emerged between rival clans in the city, the hijra also effectively increased the power and influence of the Muslim community. The increase in power meant that Muhammad and his followers could afford to take a more militant approach with their rivals in Mecca, and it is thought that during the early years of living in Medina Muhammad received the

Qur’anic verses regarding the permissibility of using violence in self-defense. As the

Muslim community began to increase in power and as they came to define themselves in response to the conflict with the Quraysh, it is believed that Muhammad began to receive the Qur’anic verses enjoining jihad against pagans and other non-believers.333

With respect to the norms of war, the move to Medina signaled a decisive break with the past, at least to some extent. Some pre-Islamic norms of war were eventually abandoned, while others were not. Prior to the advent of Islam, warring tribes on the

Arabian Peninsula were only permitted to fight each other during certain times of the

333 Firestone (1999). 151 year, and certain months were entirely off limits for fighting. The reason for this restriction was to help maintain and to facilitate better trade relations: it was during the so-called “sacred months” of the year that people engaged in an annual migration to

Mecca. Likewise, as I noted above, pre-Islamic tribes generally frowned upon attacking women and children in raids and attacks. However, after the move to Medina, the restrictions on fighting during certain months of the year were eventually abandoned, but the restrictions on attacking enemy women and children were not.

After the move to Medina, a group of Muslims went out on a reconnaissance mission to gain information about the location of a traveling caravan from Mecca, and they were sent out during the forbidden month of Rajab.334 While on this expedition, the

Muslims decided to raid a Meccan caravan, and in the process one man was killed and two people were taken as prisoners, which directly violated Muhammad’s instructions not to attack anyone.335 In response to this incident, the Quraysh castigated Muhammad and his followers for violating the restrictions against fighting during the sacred months. It was during this event that the following Qur’anic verse was revealed:

They ask of you concerning the sacred month about fighting in it. Say: fighting is a grave matter, and hindering (men) from Allah’s way and denying Him, and (hindering men from) the Sacred Mosque and turning its people out of it, are still graver with Allah, and persecution is even graver than slaughter; and they will not cease fighting with you until they turn you back from your religion, if they can; and whoever of you turns back from his religion, then he dies while an unbeliever—these it is whose works shall go for nothing in this world and the hereafter, and they are the inmates of the fire; therein shall they abide.336

334 Hashmi (2002, 203). 335 Hashmi (2002, 203). 336 Qur’an 2:17. 152

This passage holds that although fighting during the sacred months is regrettable and should be avoided if at all possible, it is legitimate to the extent that it is done in response to aggression or persecution. Recall that the Muslims fled Mecca to avoid religious persecution and oppression from the ruling elites, so in their minds any attacks on the

Quraysh were defensive or punitive in nature rather than purely offensive. Interestingly enough, however, this passage diverges from the pre-Islamic norm of restricting fighting during the sacred months, and to that extent it was an innovation over extant norms of warfare.337

But even though the Muslims began to take a more militant stance in their relationship with the Quraysh, Muhammad still did not abandon the idea that certain categories of people should not be killed in war, namely women, children, the aged, and the infirmed. Indeed, although many scholars endorse the idea that the more militant verses of the Qur’an abrogate the more pacifistic ones, most of them, with the exception of the Shafi’i school, hold that earlier norms on attacking women and children are still in place.338 Thus, although some legal schools take exception to this rule, it seems that most legal scholars endorse it.

The Muslim norms on killing women and children in war are difficult to square with the rational choice view of the laws of armed conflict. First off, when Muhammad and his followers promulgated the rules of war, they did not make them in tandem with their rivals in Mecca or in any other area of Arabia. They seem to have based them in part on pre-existing cultural norms, particularly those that outlawed war during the sacred

337 Firestone (1999). 338 Firestone (1999, 158). 153 months and those that outlawed attacks on women and children. To that extent, one might argue that they were cultural norms that operated as coordinating devices for producing convergent expectations on appropriate behavior. Yet, as I showed above, the

Muslims were fairly comfortable with abrogating some pre-Islamic norms of war, i.e. those that outlawed violence during the sacred months of the year, but they were not generally willing to overlook norms that prohibit attacks on women and children. If we regard the norms of war as coordinating devices that help actors overcome collective action problems, or if we view them as cultural ideas that people simply internalize, it is difficult to explain why the Muslims were willing to overlook some norms and not others.

If we accept the traditional account that the Muslim community became more militant as their relative power increased, one might wonder why they did not decide to overlook the traditional norms that prohibited killing women and children and that prohibited soldiers from mutilating enemy combatants. The idea that the rules of war are designed to facilitate reciprocity, or that customary rules do something similar, fails to explain why the Muslims did not abandon the idea as soon as their power increased. As some IR scholars have pointed out, political actors have powerful strategic reasons to attack civilians in war, especially in situations in which they are intent on conquering other territories.339 The evidence suggests that Muhammad and his followers were quite

339 Alexander Downes (2008) claims that states often attack civilians when they are intent on conquering territory because this helps root out potential “fifth columns” and because it helps establish dominance and authority. 154 intent on expanding their range of operations into the surrounding areas,340 and so they would have faced strong incentives to promote attacks on civilians.

Also, if the laws of war are based on considerations of reciprocity, it seems plausible to suppose that the Muslims would have eventually abandoned the idea that killing women and children is a moral crime, for in this situation their opponents most likely did not have the military wherewithal to enforce the reciprocal norm. Reciprocity only works if the other actor has the ability to respond to an infraction, which in this case means that it will only work if the other side has the ability to target the civilian population of the Muslim community. As the Muslims grew in power and expanded to control much of the modern Middle East, North Africa, and even parts of Spain, they probably did not have much to fear from their opponents in this regard, especially in the more distant geographical locations. Yet, the evidence suggests that most of them they never gave up on the idea that killing enemy women and children is a serious moral crime.

Perhaps one might argue that the Muslims did not need to kill enemy women, children, the old, or the sick because these kinds of individuals do not present a significant threat to invading soldiers. Indeed, Muhammad and later legal scholars did permit women and children to be taken as war booty, so one might argue that they decided to keep them alive to be used by the Muslim forces.341 Also, they did allow soldiers to kill male inhabitants who were not active fighters, and so one might wonder

340 Donner (1981). 341 Johnson (1997). 155 whether they were really concerned about non-combatants or if they were simply concerned with rooting out their opponents and gaining access to slaves.

This interpretation seems intuitively plausible, but unfortunately it does not explain why the Muslims would have outlawed the intentional killing of old and sick individuals. If they were merely concerned to kill off potential opponents (presuming of course that unarmed women are not potential threats, which they might be) and to gain access to slaves, then there is no clear reason why they would have outlawed the killing of older people and sick people. From the perspective of an invading force, the aged and the infirmed have little value as potential slaves, and since soldiers did not have to preserve their ammunition (they did not have guns), military commanders had no reason to believe that killing older people or the sick would have been a waste of resources. In addition, there seems to be no logical reason why the Muslims would have prohibited attacks on older and sick individuals, unless of course if we assume that they regarded it as intrinsically immoral to attack vulnerable or innocent people. Rational military commanders and their soldiers should simply refrain from killing them on their own accord, for these kinds of individuals present no threat to invading soldiers.

Perhaps one might argue that Muslims decided to outlaw attacks on civilians because they believed that this would be a counterproductive way of establishing a universal empire for all of humankind. As Eric Posner points out, “armies often spare non-combatants because they pose no immediate threat, they can provide supplies and information, and other services, and armies do not wish to give other civilians a reason for resistance…patterns of behavior that seem humane are not necessarily signs of

156 humanity.”342 Muslim rulers may have concluded that killing lots of civilians would be a bad way to build and govern an empire. Indeed, in matters such as tax policy and colonial migration, there is evidence to suggest that Muslim rulers were concerned about pacifying the civilian population in occupied territories. When they invaded Iraq, they specifically decided not to dispossess Iraqi peasants and to replace them with their own people, and they did this because they wanted to keep the peasants alive and to increase the tax revenue of the state.343 Also, they implemented tax policies that were designed specifically to be fairly undemanding on their subjects, and they seem to have done this to stave off resistance.344

But with respect to the norms of armed violence, there is no clear evidence to suggest that such an account is correct. It sounds great in theory, but without any evidence such an argument is pure speculation. However, most of the evidence points to the idea that early Muslims and their later followers endorsed civilian protection norms, at least for certain classes of particularly vulnerable people, because they regarded them as inherently normative. In my view, the reason why Muhammad and his followers did not overlook pre-existing norms on killing women and children is because of a potent cognitive and emotional disposition against intentionally attacking innocent or vulnerable people. Indeed, Muhammad was supposedly bothered by his experiences during a raid in which an innocent woman was killed, and this is why he outlawed such attacks.345

Although Muslims did allow invading forces to attack male inhabitants, a plausible

342 Posner (2003, 309). 343 Donner (1981), specifically the chapter on the conquest of Iraq. 344 Donner (1986). 345 Khan (1993) and Firestone (1999). 157 interpretation of such a modus operandi is that they had some reason for regarding male inhabitants as potentially hostile, even if they did not present a direct threat to invading forces. At the time, women, children, the aged, and the infirmed did not generally engage in war, yet male inhabitants of enemy territories did, or at least they had the potential to do so.

Conclusion

This chapter has contributed to our understanding of the foundations of the norms of war in early Islam. In conjunction with the additional chapters on the ethics of war in

Western and non-Western civilizations, this chapter suggests that there is such a thing as a grammar of moral discourse. By reviewing the political and sociological foundations of the ethics of warfare in early Islam, we have seen that existing theories have a difficult time explaining how such norms of war emerged. If we adopt a moral grammar account of discourse and international norms, such difficulties vanish. To further defend this account of discourse and norms, in the following chapter I provide an overview of the historical, sociological, and political foundations of the just war tradition in Western civilization. I argue that although existing theories call attention to important causal factors, without incorporating a psychological theory of discourse and norms, they cannot explain why Westerners converged on a highly specific set of moral ideas and institutional norms. To explain how Western and non-Western anarchic political systems converge on highly similar normative restraints, we must suppose that there is such a thing as a grammar of moral discourse.

158

Chapter 5: Justice and War in Western Civilization: The Origins of the Humanitarian Protection Regime

Though the annals of European history are filled to the edges with bloodshed and inhumanity, a closer look at the early origins of the laws of war casts this grim history in stark relief. Beneath the power struggles of early medieval Europe, we can discern the seeds of the Catholic just war tradition; through the darkness of the Thirty Years War, shines the natural reason of Hugo Grotius; in the tumult surrounding the French

Revolution, we have Kant’s Perpetual Peace. It seems that through misery and despair grow concerns for justice and virtue. The drive to end inhumane war practices in the realm of positive law did not get off the ground until the late 19th century, and most of the codified norms that attempt to protect civilians and combatants in armed conflicts did not enter into force until after World War II with the signing of the Geneva Conventions in

1949. But the humanitarian protection regime has a lengthy history stretching back to the origins of Western civilization.

In the next two chapters, I track the history of the humanitarian protection regime through the lens of the moral grammar theory of discourse and norms. In this chapter, I locate the origins of this regime in the social conditions of medieval Europe and in early

Catholic Church doctrine, and I connect this discussion to modern international society by analyzing the progressive secularization of international law following the spread of

159 liberal ideas during the Enlightenment. Since humanitarian ideas emerged in social conditions that were unique to early medieval Europe, and since we have seen that similar ideas have emerged in earlier non-Western civilizations, a structural analysis of the humanitarian protection regime is theoretically insufficient. To account for the origins of the laws of war in international society, we need a theory of international norms that shows us how one’s experience of particular social conditions leads to certain normative structures. The generative grammar account of moral discourse in philosophy and cognitive science points us in the right direction, for it gives us a theory of the psychological factors that underlie moral experiences.346 The conceptual categories that political actors, philosophers, and theologians use to justify the laws of war must come from somewhere, and so a plausible interpretation of the evidence is that they emerge from the universal categories of the mind.

In response to this, a rationalist might argue that political actors use moral claims to suit their interests, and that the laws of war in Western civilization really emerged from a set of material interests or from cooperation problems. As I suggested earlier, rationalists argue that the laws of war are designed to facilitate reciprocity and to help control the costs of armed conflict. However, an analysis of the early development of the humanitarian protection regime suggests that the rational choice account is not true. For one thing, the laws of war emerged largely out of a tradition of moral theorizing—a tradition of theorizing that I argue has a basis in universal mental structures and categories—and to that extent it was not an outgrowth of political interests. But in addition, the historical evidence suggests that political actors did not endorse restraints on

346 See Mikhail (2011). 160 armed violence to extricate themselves from the kinds of collective action problems that rationalists emphasize. Instead, political actors in early Europe endorsed these restraints because the Catholic Church threatened them with excommunication from the Christian community, and the Church itself seems to have believed that these restraints are consistent with the demands of justice.

Furthermore, along with my analysis of the laws of war in Ancient China and early Islam, the laws of war do not appear to have been rationally designed. On the one hand, political actors in the history of Western civilization virtually never consciously weigh the consequences of following a specific set of norms, e.g. the principle of distinction, against the consequences of following some alternative set. They simply endorse a set of norms without considering the alternatives. This suggests that they have either internalized a set of socially constructed norms or that they are implicitly using a set of universal cognitive scripts to make their claims, and the argument of this dissertation is that the latter claim is more plausible. On the other hand, the political actors and philosophers who endorsed the laws of war could have adopted alternative norms that may have been more “rational.” To make these claims, I track the early development of the laws of war in the West, and I consider the reasons why political actors may have adopted the specific norms that they in fact adopted.

To the extent that the laws of war in Western civilization have counterparts in

Ancient China and early Islamic civilization, constructivist theories of international norms need to be seriously reconsidered. But perhaps one might argue that a cultural analysis of the laws of war in the West significantly adds to our understanding of the

161 meaning of the humanitarian protection regime. Indeed, the ethical precepts that have hitherto constituted our center of attention in this dissertation may seem rather “thin” on semantic content. Such precepts may form the rough outlines of the practical rules that states follow, but for them to have any significant influence on social action they must be given a concrete interpretation—an interpretation that can only be supplied by culturally- constituted structures of collective knowledge. In other words, for normative rules to affect social action, they need to be given a culturally specific meaning. For these reasons, a constructivist might argue that the generative grammar account of moral discourse is hopelessly irrelevant. It gives us an account of the thin discursive architecture upon which social norms are built, but it does not tell us much about the semantic content of these norms. To “get at” semantic content, we need to bring in culturally-constituted knowledge.

Though I do not believe that cultural discourses are irrelevant—no IR theorist who takes ideational factors seriously would make such a claim—I do believe that the grammar of moral discourse laid out in Chapter 2 does have more semantic content than such a criticism suggests. Cultural symbols and meanings do give direction and content to innate mental structures and beliefs, but innate mental structures and ideas do have implications that outstrip the effects of culture: the shared rules of moral discourse have meanings that are not reducible to or derivable from culturally embedded discourses. To defend this claim, in the second section of this chapter I critically review Helen

Kinsella’s recent Foucauldian constructivist analysis of the laws of war.347 In Kinsella’s view, the laws of war, and in particular the distinction between combatants and non-

347 See Kinsella (2011). 162 combatants that is so central to the humanitarian protection regime is constituted by three distinct cultural discourses: the discourses of gender, civilization, and innocence. Since it difficult for political actors to clearly distinguish between civilians and combatants, she argues that they use these three discursive structures to produce the distinction between combatant and non-combatant.

…..[T]hese discourses converge at particular junctures to produce the combatant and the civilian, demarcating the difference between them. My historical claim is that, in each of the moments I analyze, this series [of discourses] is a necessary element in the production of the distinction.348

Although her genealogy of the principle of distinction is very compelling, her argument amounts to a non sequitur: it is possible to mark the distinction between combatant and civilian without invoking the discourses of gender, innocence, or civilization; in fact political actors, philosophers, and theologians have made this distinction without implicitly relying upon the culturally constituted discourses that

Kinsella analyzes. To demarcate the categories of combatant and non-combatant, and to attribute moral significance to this demarcation, political actors and theorists rely upon implicit mental categories and structures that I have outlined in Chapter 2 above. To demonstrate this claim, I analyze both religious and secular texts in the Western just war tradition, and I show that Western political theorists do not necessarily use the discourses of gender, civilization, and innocence to mark the distinction between combatants and civilians. Instead, they use the concepts and principles I have discussed that I have discussed at length above, in particular the principles of the Harmful Action model in

Table 3.

348 Kinsella (2008, 8). 163

This chapter is organized as follows. In the following section I briefly outline the historical origins of the laws of war in the West, and I then explain how structural- systemic and rational choice explanations are not adequate to account for the early emergence of humanitarian ideas. I claim that the laws of war emerged as an intuitive moral response to historical contingencies and events over which people had little control. Nevertheless, the laws of war are not reducible to any particular social structures and constraints,—they have been multiply realized in a wide variety of social situations.

Nor are they derivable from the calculus of social interests. Following my discussion of structuralism and rationalism, I then move on to show how my account of the laws of war more plausibly interprets the discursive evidence than does Kinsella’s Foucauldian post- structuralist account of the civilian immunity principle.

Social Structures and Strategic Interests: The Early Emergence of Humanitarian Protection Ideas in Western Civilization

The laws of war in the West are, in a real sense, a social tradition, and so it is difficult to pinpoint their precise intellectual and sociological foundations.349 As with any cultural tradition, the laws of war have a socially defined meaning, and they were heavily influenced by religious ideologies concerning the existence of God, the meaning of human life, and the proper nature of social institutions. In that sense, one might argue that it seems wrong to say that the laws of war are based upon universal moral precepts and mental structures. Perhaps it is more plausible to believe that the laws of war are rooted in a set of specific material conditions or that they are based upon culturally-

349 Johnson (1986). 164 constituted discourses. To show the added value of the generative grammar account of moral discourse, in this section I claim that purely structuralist and rational choice theories cannot explain why early Westerners converged on particular moral ideas for protecting civilians in war. On the one hand, the laws of war emerged out of structural conditions wholly distinct from those of early China or early Islam. On the other hand, I argue that civilian protection norms were not in any clear sense rationally designed to overcome a collective action problem. Furthermore, rational choice theory cannot explain the eventual form that civilian protection norms eventually came to have: they do not simply outlaw attacks on civilians, but more importantly they outlaw intentional, rather than incidental, attacks. Rational choice theorists cannot explain why just war scholars and political actors adopted this rule, along with the consequent proportionality rule, instead of the compensation rule discussed above in Chapter 2.

To justify my criticism of structural-systemic theories, I review the early origins of the civilian immunity idea in the Catholic just war tradition and in an early medieval

European social movement known as the Peace of God. I claim that it was not the process of state formation that prompted the development of humanitarian protection ideas; instead it was the deterioration of public authority in early Europe.

The Peace of God, Catholic Church Doctrine, and the Emergence of Humanitarian

Protection Ideas

The work of St. Augustine is typically regarded as the intellectual foundation of the just war tradition in Western civilization. In spite of this, Augustine said very little

165 about the types of rules that should constrain the use of violence in war, and most of his work was devoted to explaining why Christians can lawfully engage in war in the first place.350 Likewise, St. Thomas Aquinas made few direct comments about the impermissibility of killing civilians in war, and his views on killing the innocent were mostly set forth in the Summa Theologica in his more general discussion of homicide rather than in his discussion of warfare.351 In any case, although the notion of civilian immunity is rooted in universal cognitive precepts, e.g. the precept that the innocent should not be punished, it also emerged in response to a particular social environment.

Though it is difficult to pinpoint the exact social conditions that gave rise to the concept of civilian immunity, most historians suggest that it resulted from a social movement known as the Peace of God that began around 990 AD in what is now Southern France.352

The immediate impulse of the Peace of God was the “progressive deterioration of public authority in France,” and the consequent rise in feudal violence.353

If there was a “century of violence,” the tenth century was it… In the Auvergne, violence committed by lords appears in isolated references in the tenth-century documents but becomes more frequent by mid-century.354

During this period of European history, the old Carolingian system of justice was

“replaced by a multiplicity of local lords who vied with each other for the control of their

350 Hartigan (1966), Langan (1984). 351 See Kinsella (2011). It should be noted that although Aquinas only discusses the problem of killing the innocent in his more general discussion on the morality of homicide, his claims in this section are applicable to his claims about killing in war. Indeed, in his discussion of the morality of self-defense, Aquinas uses hypothetical examples from armed conflict to make his claims. This suggests that in Aquinas’s mind, the problems of homicide and killing in war were connected. See the citation of Aquinas below. 352 Johnson (1981), Johnson (1997), Hartigan (2010), and Kinsella (2011). 353 Cowdrey (1970, 46). 354 Lauranson-Rosaz (1992, 196). 166 neighborhoods, while they knew the restraining hand of no superior authority.”355 As such, there was a dearth of institutional responses to check the power and violence of feudal lords, a fact that threatened the property of the Catholic Church and the lives and livelihoods of the rural peasantry. In medieval Europe, the Catholic Church was one of the largest owners of property, and it often fell victim to the “depredations of local lords.”356 The predatory violence of feudal lords, whose power and status depended upon military prowess, posed a threat to the interests of the Catholic Church and the rural peasants who were often caught in the crossfire. This created an alliance of interests between peasants and the Church, and clergymen in the dioceses of Southern France convened Church councils in an attempt to set down restraints on the use of feudal violence.357

In these council meetings, the clergy brought together rural peasants and powerful aristocrats, sometimes coercing the latter to swear an oath to peace and to comply with a set of rules for the prosecution of military violence. The punishment for violating these rules was excommunication from the Christian community. The rules set forth at the first

Church Council at Charroux in 989 are indicative of the kinds of concerns that led to the broader Peace of God movement:

Our purpose is that the criminal activity, which we know has for some time been sprouting up through evil habit in our districts because our long delay in calling a council, will be rooted out and more lawful activity implanted. Therefore we who are specially gathered together in the name of God decree, as will be made manifestly clear in the following canons, that: (1) if anyone attacks the holy church, or takes anything from it by force, and compensation is not provided, let him be anathema; (2) if anyone takes as booty sheep, oxen, asses, cows, female

355 Cowdrey (1970, 46). 356 Cowdrey (1970, 46) and McKinney (1930, 182). 357 Lauranson-Rosaz (1992). 167

goats, male goats or pigs from peasants or other poor people—unless due to the fault of the victim—and if that person neglects to make reparations for everything, let him be anathema; (3) if anyone robs, or seizes, or strikes a priest, or a deacon, or a man of the clergy who is not bearing arms…but who is simply going about his business remaining at home, and if, after examination by his own bishop, that person is thus found to be guilty of any crime, then he is guilty of sacrilege, and if he further does not come forward to make satisfaction, let him then be excluded from the holy church of God.358

This document suggests that the primary concerns of the Church were not entirely altruistic: it was primarily interested in protecting its members and property from predatory feudal violence and it was only secondarily interested in the welfare of unarmed peasants. Indeed, the second canon suggests that the Church was more interested in protecting peasant property, livestock, and labor than it was in protecting the peasants themselves. As Hans-Woerner Goetz aptly suggests, the Church implemented

“these measures…to maintain the production of food.”359 However, the peace oaths did eventually come to extend protection to actual peasant lives, and in an oath proposed by

Bishop Warin of Beauvais to King Pious in 1023, it was stated that knights should “not attack merchants or pilgrims or take their possessions unless they commit crimes.”360

What is more, the broader Peace of God movement did have sizeable popular element, and some historians suggest that it had an influence on the development of popular opinion in early Europe.361

The Peace of God movement eventually spread to other parts of Europe, and the idea that certain classes of individuals should be granted special protection in war became

358 Head & Landes (1992, 327-328). 359 Goetz (1992, 267). 360 Head & Landes (1992, 333). 361 McKinney (1930). 168 a central element of the Catholic just war tradition.362 Although the concept of civilian immunity was influenced by the medieval code of chivalry,363 the chivalric code was mainly used as a status marker between wealthy knights and commoners. Knights could only gain prestige and glory by killing other knights, not unarmed peasants; in the emerging just war doctrine, however, killing civilians was a matter of justice:

It in the canon law, those persons named as non-combatants are spared the ravages of war by simple justice. They are not making war; so they should not have war made against them. This is their right, which only they can relinquish, as they would if they took up arms or allowed soldiers to hide among them.364

In any case, it was the Peace of God movement that gave rise to the idea that innocent civilians, in this case peasants and clergymen, should not be intentionally killed in war.

Thus, it seems that state formation had little to do with the emergence of the civilian protection idea in European society, as it did in the case of Warring States China. To explain how civilian protection ideas emerge in some anarchic political systems, we need to better understand how people experience and respond to their social conditions. We cannot simply assume that social structures rigidly determine how actors produce normative rules and institutions, but rather we must assume that actors themselves have some role to play.

The textual evidence from the Peace of God movement shows that the kinds of moral beliefs that motivated social action are derivable from the grammar of moral discourse laid out in Chapter 2. The discursive evidence from the Council of Charroux ub 989 A.D. clearly shows that the designers of this peace oath believed that it is wrong

362 Johnson (1981, 131). 363 See Coverdale (2004). 364 Johnson (1981, 138). 169 to attack individuals who do not bear arms, and the peace oath of Beauvais in 1023 A.D. demonstrates that the basis of granting such immunity laid in one’s moral innocence from committing a crime. The only precepts that do not seem to have significantly influenced the norms laid out in these peace oaths were those surrounding the concepts of intentionality and proportionality, namely Principle #1 and Principle #2 of the Harmful

Action model. However, these notions would eventually come to dominate Western thinking on the norms of war, and this was true from a relatively early period. Indeed, St.

Thomas Aquinas is generally regarded as being responsible for introducing the notion of proportionality, or as he calls it the rule of “double-effect,” into the Western just war tradition. To be sure, Aquinas, like Augustine before him, says relatively little about the principle of civilian immunity.365 In that sense, Kinsella is correct in her assessment that

Augustine and Aquinas are not “terribly explicit about the concept of immunity.”366

Nevertheless, Aquinas’s discussion of the rule of double-effect is directly applicable to questions regarding the morality of killing in war; in fact, his presentation of the rule of double-effect suggests this interpretation. In response to the question of whether it is permissible to kill someone in self-defense, he argues that as long as one only intends to save oneself, rather than to kill another person, it is permissible. Likewise, he claims that such considerations apply to the morality of killing in a just war. Here is how he responds to the question:

Nothing hinders one act from having two effects, only one of which is intended, while the other is beside the intention. Now moral acts take their species according to what is intended, and not according to what is beside the intention, since this is accidental as explained above (43, 3; I-II, 12, 1). Accordingly the act

365 See Hartigan (2010), Hartigan (1966), Langan (1984), and Kinsella (2011, 36). 366 Kinsella (2011, 36). 170

of self-defense may have two effects, one is the saving of one's life, the other is the slaying of the aggressor. Therefore this act, since one's intention is to save one's own life, is not unlawful, seeing that it is natural to everything to keep itself in "being," as far as possible. And yet, though proceeding from a good intention, an act may be rendered unlawful, if it be out of proportion to the end. Wherefore if a man, in self-defense, uses more than necessary violence, it will be unlawful: whereas if he repel force with moderation his defense will be lawful, because according to the jurists [Cap. Significasti, De Homicid. volunt. vel casual.], "it is lawful to repel force by force, provided one does not exceed the limits of a blameless defense." Nor is it necessary for salvation that a man omit the act of moderate self-defense in order to avoid killing the other man, since one is bound to take more care of one's own life than of another's. But as it is unlawful to take a man's life, except for the public authority acting for the common good, as stated above (Article 3), it is not lawful for a man to intend killing a man in self-defense, except for such as have public authority, who while intending to kill a man in self- defense, refer this to the public good, as in the case of a soldier fighting against the foe, and in the minister of the judge struggling with robbers, although even these sin if they be moved by private animosity.367

The italicized sections of this passage show that Aquinas uses the principles of the grammar of moral discourse as I have laid them out above. He places a higher moral valence on intended harms as opposed to unintended harms, and he believes that the moral benefits of unintended harms must be weighed against their costs. Furthermore, he explicitly argues that unnecessary violence, i.e. violence over and above the threshold necessary to repel an unjustified attack, is unlawful. Lastly, though he does not outline a clear notion of non-combatant immunity in war, these comments on the morality of killing are applicable to war, as his comments in the final sentence of this passage aptly demonstrate. Thus, even though the principles of the Harmful Action model may not have been used in the peace oaths surrounding the Peace of God movement, they did eventually come to be central components of the just war tradition in the West, and so we

367 Aquinas, Summa Theologica, Question 64 “On Murder.” Available online at: http://www.newadvent.org/summa/3064.htm. Emphasis added. 171 can plausibly conclude that the grammar of moral discourse did influence the development of the norms of war in European society.

A Rationalist Interpretation of Civilian Immunity

Notwithstanding Catholic Church doctrine, perhaps one might argue that the emergence of civilian protection ideas in early Europe was the result of strategic calculations, not moral beliefs. Indeed, the evidence shows that the Catholic Church had strong interests in promulgating an ethical code that placed clergymen, not to mention

Church property, beyond the realm of military attacks. The canon of Charroux even shows that the Church seems to have had a greater interest in protecting peasant property than it did in protecting peasants themselves, and one might arguably claim that the only reason why the Church wanted to protect the interests of peasants at all was to increase their own political power over feudal lords. Also, one might argue that the Church’s power to excommunicate was the only reason why feudal knights signed on to the peace oaths. Without the threat of being kicked out of the Christian community, they most likely would have continued on as before. So, one might argue that we do not need the universal grammar account of moral discourse to explain the emergence of humanitarian protection norms in early Europe.

I have two responses to this potential criticism. First off, although the Church did have strong material interests in checking the power of feudal lords and in protecting clergymen and peasants, the peace oaths were clearly influenced by moral beliefs, and not just preferences. It may be true that political preferences led the Church to use

172 certain moral claims, but it seems clear that these preferences cannot be the source of the claims themselves. Rationalists believe that political actors use moral discourse for strategic ends, but they cannot argue that such claims are ontologically rooted in political ends. Otherwise, moral discourse would be an utterly useless rhetorical tool: its power to persuade others lies chiefly in the fact that it is not rooted in any particular ends. When the Church claimed that knights should refrain from attacking peasants and clergymen, it argued that doing so was a matter of justice. Killing unarmed clergymen or peasants who have not committed any crimes is inherently wrong and it should be avoided. It is true that the Church may have made such claims for its own strategic interests, but the idea of justice that underlies such claims cannot have its basis in strategic calculations. Some additional concerns must have led early Christians to believe that killing unarmed clergymen, peasants, merchants, and pilgrims is unjust.

Second, rational choice theory cannot account for the form, or the particular precepts, that would eventually comprise the laws of war in Western society. As I demonstrate below, the laws of war eventually came to be comprised of three rules: (1) a rule of distinction that outlaws intentional attacks on civilians; (2) a rule that allows incidental attacks on civilians so long as a rule of proportionality is followed; and (3) a rule that prohibits states from imposing unnecessary suffering on other soldiers. Rational choice theory cannot adequately explain why political actors opt for rules that place such a heavy emphasis upon intentional vs. unintentional harms to civilians. To be sure, when one intentionally attacks unarmed civilians, one creates a reputation as a rule breaker, and presumably political actors want to be able to identify cheaters. But discerning intentions

173 is inherently difficult, and most rationalists assume that actors are almost always uncertain about the intentions of others. And in light of the fact that unintended deaths are allowed, just in case they comply with the proportionality constraint, means that there is always room for plausible deniability. Lastly, rational choice theory cannot explain why political actors, from the early period of medieval Europe to modern international society, have not considered creating a rule that allows actors to intentionally attack civilians but that requires them to pay compensation to target states. To my knowledge, the only author who even considers such a rule in the entire canon of Western political thought is Kant, and he only applies it to the destruction of civilian property, not lives.368

To explain why Western society converged on humanitarian protection ideas, we need to look to additional factors, not simply material conditions or strategic interests. In the following section I show why a cultural explanation of humanitarian protection ideas in the West is not adequate.

Western Culture, Moral Universals, and the Laws of War

In this section I critically review a recent account of the principle of distinction by political scientist Helen Kinsella. Reviewing her post-structuralist account of the principle of distinction has two major pay-offs: on the one hand, it allows me to respond more forcefully to the constructivist criticism that the moral grammar laid out above is

“thin” on semantic content; on the other hand, it allows me to show how the universal grammar theory of moral discourse and international norms can be used as an interpretive tool for understanding culturally meaningful discourses. As I have stressed throughout

368 Kant (1996/1797, 117). 174 this dissertation, my claim is not that culturally-specific meanings and discursive practices are irrelevant for understanding international norms. Instead, my claim is that the grammar of moral discourse causally influences the development of normative structures. In order to explain how these structures arise, structural-system, rationalist, and constructivist views must be supplemented with a psychological account of moral discourse. But a constructivist might argue that the grammar of moral discourse as I have laid it out is far too thin on semantic content to explain why actors might endorse certain norms of war. To explain why people adopt certain normative ideas, we need to tap into the deep structures of collective knowledge that constitute these ideas. Otherwise, we are simply scratching the surface of the normative structures that govern the use of force in international society.

But in order to compare my argument about the grammar of moral discourse with a constructivist account, we need to analyze an actual constructivist theory of the laws of war. Kinsella’s account offers us such a theory. As I suggested at the outset of this dissertation, it is not possible to directly test my argument concerning the relationship between mental structures and social norms, but it is only possible to show how it can improve upon existing accounts. Indeed, since the argument applies specifically to individual mental structures, it is metaphysically impossible for me to test this account across historical time periods. The relevant research subjects in this case, e.g. Vitoria and

Grotius, are unfortunately all dead. To reveal the contribution of this approach it suffices to show that it affords us a more satisfying account of the existing historical and textual evidence than those that are currently on offer. In spite of its many strengths, I argue that

175

Kinsella’s post-structuralist account of the principle of distinction fails to explain why actors make the distinction between combatants and civilians. She presumes that in order to explain the distinction between combatants and civilians, or in order to understand its meaning, we need to unearth the deep and meaningful discourses through which it is produced. In response, I claim that all we need to interpret the semantic meaning of the principle of distinction is the grammar of moral discourse set forth in Chapter 2, and that this provides us with a more plausible interpretation of the textual evidence than does

Kinsella’s argument. To make this claim, I review the work of Vitoria, Grotius, Locke, and Kant.

A Post-Structuralist Account of Humanitarian Protection Ideas

In The Image Before the Weapon, Kinsella adopts a post-structuralist account of politics, which holds that political life “is marked by the contingency, unpredictability, and fragility of action—the spontaneous praxis through and by which we ourselves and the world that we hold in common are produced. Politics, in this understanding, is uncertain and remains so regardless of the best intentions or efforts of individuals to order it in accordance with their wishes or intentions.”369 The principle of distinction, likewise, is shot through with indeterminacy. Insofar as it is inherently difficult to concretely specify who is a combatant and who is not a combatant, the principle of distinction exists in a zone of indeterminacy, a zone that is the very “condition of politics.”370

[T]he concepts and categories of combatant and civilian cannot be taken as self- evident either within international humanitarian law or in conflicts. Therefore,

369 Kinsella (2011, 191). 370 Kinsella (2011, 191). 176

they must be produced… Put another way, although the laws rest on a seemingly self-evident categorization—you are either one or the other, combatant or civilian—it is not that simple. As any soldier in Baghdad or Herat can attest, errors lead not simply to the deaths of Iraqi and Afghani civilians mistakenly killed but also to the deaths of U.S. soldiers who mistake Iraqi or Afghani combatants for civilians. Even in the laws of war, to which we refer to clarify the difference, the combatant and the civilian are not as distinct as implied.371

Given its intrinsic indeterminacy, Kinsella aims to understand how the principle of distinction and its associated categories of the combatant and the non-combatant have been produced at multiple conjunctures in Western history. In other words, given that the principle of distinction is intrinsically indeterminate, how do actors produce the distinction between combatant and civilian? How do they discursively mark out who is a combatant and who is a civilian?

Kinsella argues that the distinction between combatants and non-combatants is made possible by “a series of discourses—gender, innocence, and civilization—that, like red threads, mark the history of the principle of distinction. It is this series of discourses, each of which is itself composed of a confluence of political, moral, and legal judgments, that conditions the appearance of the civilian and the combatant and invests the distinction with a seemingly disputable gravity and authority.”372 These three discourses

“produce the combatant and the civilian, demarcating the difference between them.”373

In other words, Kinsella holds that these discourses enable political theorists, theologians, and international jurists to mark the distinction between combatants and non-combatants; they make it possible to set the distinction between intrinsically indeterminate categories.

By doing this, these discourses simultaneously function as a mechanism of power by

371 Kinsella (2011, 5). 372 Kinsella (2011, 7-8). 373 Kinsella (2011, 8). 177 effectively creating and stabilizing a particular social order. For example, insofar as the principle of distinction is produced by the discourse of civilization, it produces the difference between civilized and uncivilized peoples (i.e. civilized people uphold it, while barbarians do not), and it thereby functions as a discursive technique of power.

Kinsella argues that at each point in history these discourses are used, not necessarily in the conscious sense, to stabilize the distinction between civilians and soldiers. Not only does this view influence her account of the social history of the laws of war, but it also influences how she interprets the works of philosophers, theologians, legal scholars, and historians. In her view, the principle of distinction does not reflect, in

Michael Walzer’s words, “universal notions of right and wrong,” but rather the principle, and presumably the discourses of gender, innocence, and civilization, “helps to create them.”374 Importantly, philosophers such as Vitoria and Grotius do not base the distinction on these universal notions of right and wrong, try though they might, but instead they base them upon socially constituted discourses of gender, innocence, and civilization.

My historical claim is that, in each of the moments I analyze, this series is a necessary element in the production of the distinction. But I am not risking the trans-historical claim that in each instance the principle appears (or appears only) as an effect of this series. Accordingly, my choice of this series is neither whimsical nor exhaustive; it derives from listening to “popular language in which words…are daily used as political clichés and misused as catchwords.375

Statements like this make it difficult to evaluate Kinsella’s account. If this series is a “necessary element in the production of the distinction,” then it seems that she is, at least implicitly, “risking the trans-historical claim that in each instance the principle

374 Kinsella (194). 375 Kinsella (2011, 8). 178 appears (or appears only) as an effect of this series.”376 Perhaps the distinction is marked by other discourses that she has failed to consider, but with no alternatives on offer I am forced to interpret her as endorsing the stronger claim she makes in the first sentence, i.e. that this series of discourses is necessarily constitutive of the distinction between combatants and non-combatants. In the rest of this section I argue that her interpretation of the textual evidence is inadequate, and it makes more sense to view the principle of distinction as reflecting universal ideas of right and wrong, i.e. to view it as a reflection of the grammar of moral discourse. Here I argue that Vitoria, Grotius, Locke, and Kant do not use the discourses of gender, innocence, and civilization to mark the distinction between combatants and civilians, and so the “constitutive explanation”377 that Kinsella gives for the principle of distinction is fallacious. Instead, they use the moral concepts and principles that constitute the partial grammar of moral discourse in Table 3.378

Religious and Secular Views on Killing in War

The Western just war tradition is most aptly viewed as a combination of two interrelated traditions.379 On the one hand, it is composed of a religious doctrine that was initially concerned with determining whether Christians can permissibly engage in war.

A brief review of the social, political, and intellectual history of the Christian just war tradition was set forth in the preceding section. On the other hand, the Western just war tradition is also comprised of a secular (or perhaps “secularized”) account of the

376 Kinsella (2011, 8). 377 See Wendt (1999). 378 See Mikhail (2011, xv). 379 Johnson (1975). 179 permissibility of political violence—a tradition that shares some similar concerns with the religious just war tradition but that approaches them from a distinct perspective. In order to show how the universal grammar account of the laws of war can improve our understanding of the sources of the norms of war in modern international society, in this section I review the works of one major Catholic theorist and three major secular authors on the secular version of just war theory: Francisco de Vitoria, Hugo Grotius, John

Locke, and Immanuel Kant. While these authors had widely divergent views on the basis of human morality, they spoke with common precepts about the necessity of protecting civilians in war. Moreover, the cultural discourse analysis that Kinsella offers does not fully explain why or how these authors made a distinction between combatants and non- combatants in war.

Francisco de Vitoria

One of the first Catholic theologians to explicitly defend the idea that it is unlawful to intentionally kill non-combatants was Francisco de Vitoria.380 In his classic treatise De Jure Belli (“On the Laws of War”), Vitoria claims that “the foundation of the just war is the injury inflicted upon one by the enemy,” and that innocent people should not be killed because they have done nothing wrong or harmful.381

Within the commonwealth it is not permissible to punish the innocent for the crimes of the evil and therefore it is not permissible to kill innocent members of the enemy population for the injury done by the wicked among them.382

380 Hartigan (2010, 84). 381 Vitoria (1991, 314-315). 382 Vitoria (1991, 315). 180

Here, Vitoria clearly argues that it is immoral to kill enemy non-combatants, and the reason for this is that enemy non-combatants have done nothing wrong to justify attacking them. However, drawing on the principle of proportionality first set forth by St.

Thomas Aquinas, Vitoria argues that although it is wrong to intentionally kill an innocent person, it is permissible just in case the death is a side-effect of an otherwise legitimate act of warfare. Hence, he uses Principle #2 of the Harmful Action model to set out his views on the morality of killing in war.

…It is occasionally lawful to kill the innocent not by mistake but with full knowledge of what one is doing, if this is an accidental effect: for example, during the justified storming of a fortress or a city, where one knows there are many innocent people, but where it is impossible to fire artillery and other projectiles or set fire to buildings without crushing or burning the innocent along with the combatants. This is proven, since it would otherwise be impossible to wage war against the guilty, thereby preventing the just side from fighting. Nevertheless, we must remember the point….that care must be taken to ensure that the evil effects of the war do not outweigh the possible benefits sought by waging it. If the storming of a fortress or town garrisoned by the enemy but full of innocent inhabitants is not of great importance for eventual victory in the war, it does not seem to me permissible to kill a large number of innocent people by indiscriminate bombardment in order to defeat a small number of enemy combatants. Finally, it is never lawful to kill innocent people, even accidentally and unintentionally, except when it advances a just war which cannot be won in any other way.383

Though it may be permissible to incidentally kill the innocent in war, the harms imposed on the innocent must be proportional to the legitimate ends sought in battle. Vitoria’s claims regarding intentionality and proportionality have become a mainstay of the humanitarian protection regime in Western civilization, as I will demonstrate in more detail in the following chapter.

383 Vitoria (1992, 315-316). 181

Kinsella claims that “those who praise [the work of Vitoria and Grotius] fail to consider the ways in which the discourses of civilization and barbarism inform their writings.”384 At the time in which Vitoria composed his major works on the law of nations, i.e. De Indis (“On the American Indians”) (1538) and De Jure Belli (1539),

European states, particularly Spain and Portugal, were in the process of colonizing the territories in the “New World” and subjecting their inhabitants to the vagaries of

European rule. Although Vitoria was somewhat critical of Spanish colonial policies in the Americas, his analysis of the legitimacy of Spanish conquest took place within the context of an international political system that granted authority to the “civilized” states of European Christendom. Hence, it is difficult to interpret his theory of the laws of war apart from this broader social context. In Kinsella’s view, the discourse of civilization is important here because it establishes the premise of civilian immunity: in order to be considered immune from attack, one had to convert to Christianity and submit to the superiority of Spanish rule.

Regardless of his aspirations, Vitoria substituted the right of conquest held by Christian states for that held by civilized states. Immunity remained premised on conversion, understood now as encompassing both Christianity and, through the work of Vitoria, civilization. Immunity was an effect of Christian mercy, which, as captured so complexly in Vitoria’s writings, is the point of departure for the conceptualization of immunity as an effect of civilization.385

If this is meant as a comment about the relationship between collective identity and civilian immunity, i.e. that the Europeans had to see the Indians as similar moral subjects in order to recognize any restraints on their behavior toward them, then I wholly concede the point. As noted above, I presume that political actors do not generally grant

384 Kinsella (2011, 55). 385 Kinsella (2011, 66). 182 humanitarian protections to others unless they share with them ties of collective identity.

But to make this point, we do not need to bring in the notion of civilizational discourse: we simply need to note that actors do not abide by moral restraints toward individuals who they do not recognize as moral subjects. In the case of Vitoria, he clearly regarded

Indians as moral subjects, albeit of a lesser status than Christianized Europeans. In response to the question of whether the Indians had property rights in their territory,

Vitoria makes the following points:

The conclusion of all that has been said is that the barbarians undoubtedly possessed as true dominion, both public and private, as any Christians. That is to say, they could not be robbed of their property either as private citizens or as princes, on the grounds that they were not true masters. It would be harsh to deny to them, who have never done us any wrong, the rights we concede to Saracens and Jews, who have been continual enemies of the Christian religion. Yet we do not deny the right of ownership of the latter, unless it be in the case of Christian lands which they have conquered.

To the original objection one may therefore say, as concerns the argument that these barbarians are insufficiently rational to govern themselves and so on. Aristotle certainly did not mean to say that such men thereby belong by nature to others and have no rights of ownership over their own bodies and possessions. Such slavery is a civil and legal condition, to which no man can belong by nature. Nor did Aristotle mean that it is lawful to seize the goods and lands, and enslave and sell the persons, of those who are by nature less intelligent. What he meant to say was that such men have a natural deficiency, because of which they need others to govern and direct them. It is good that such men should be subordinate to others, like children to their parents until they reach adulthood, and like a wife to her husband….

Hence, granting that these barbarians are as foolish and slow-witted as people say they are, it is still wrong to use this as grounds to deny their true dominion; nor can they be counted among the slaves. It may be that these arguments can provide legal grounds for subjecting the Indians, but that is a different matter.386

This passage clearly shows the lack of equal moral respect that Vitoria had for indigenous peoples in the Americas. But since Vitoria did view the Indians as having

386 Vitoria (1991, 250-251). 183 what might be called a minimal moral subjectivity, this shows that the concept of moral immunity was not predicated on the discourse of civilization, at least not to the extent that

Kinsella suggests. As Kinsella claims, the granting of civilian immunity is “premised on conversion” to Christianity and to the superiority of European civilization.387 In that sense, she believes that the discourse of civilization constitutes the distinction between combatant and civilian. However, Vitoria’s discussion of the indigenous peoples subject to Spanish rule shows that, in contrast to many of his contemporaries, he believed that

Indians have a minimal level of moral subjectivity apart from accepting the truth of

Christianity. He believes that unless they have committed a moral wrong against someone else, it is unjust to dispossess them of their territory. Granted, he did argue that indigenous tribes have an obligation to allow the Spanish to travel through their lands and to propagate Christianity, and he also believed that they can be warred upon if they prevent the Spanish from exercising these rights. However, his belief in the moral subjectivity of the Indians and his arguments about the precept of civilian immunity were not based upon the discourse of civilization.

Likewise, Vitoria does not predicate his analysis of the civilian immunity principle upon what Kinsella calls the discourse of “innocence” and the discourse of

“gender.” With respect to the discourse of innocence, Kinsella argues that

[T]he etymology of innocence refers not only to the absence of culpability but also to ignorance and harmlessness (see chap. 2). The innocence of the Indians was defined in Vitoria’s first disputation (On the Indians Recently Discovered) as stemming from their ignorance of the law of nations; it was the ignorance of the untutored child and the result of insufficient reason... Indians were to be spared because they were like children. This is a reasonable claim in the traditions of war within which Vitoria wrote; however, it does little to defend his claim.

387 Kinsella (2011, 66). 184

Children…are not always innocent and are certainly not consistently harmless. Indeed, Vitoria himself first notes that children should be spared in war because they are “obviously innocent,” but he is forced to elaborate this point because the innocence of children is bounded, not absolute. Recognizing this boundedness, he suggests that children are innocent and should be spared because they have yet to commit evil, not because they are incapable of committing evil. Likewise, the Indians should be spared because they had yet to commit evil; but, like children, the Indians bore the constant potential to “pose a threat in the future.”

Indians could also be considered innocent because they were ignorant of the laws of which they were in violation. Only when the Indians were no longer ignorant of the proper comportment and acceptance of the law of nations were they no longer innocent of their transgressions of that law….388

As this passage seems to indicate, Kinsella believes that the discourse of innocence has a constitutive effect on the principle of distinction: Vitoria used this discursive structure to explain why indigenous peoples cannot be unjustly attacked. However, it seems to me that the “discourse of innocence” that Kinsella talks about is not really a cultural discourse in the strict sense. Instead, the kinds of concepts that she uses to elaborate on this discourse, i.e. “innocence,” “culpability,” “guilt,” and so forth, are fairly common in discussions of the morality of armed violence in non-Western cultures, as I have shown in the two previous chapters. Thus, it seems wrong to say that Vitoria is using a socially constructed discursive structure to mark the distinction between combatant and civilian; rather, he is using a universal grammar of moral discourse.

With respect to the discourse of gender, Kinsella argues that “the desire to stabilize and materialize a distinction [between combatant and civilian] led Vitoria to rely on visible racial and sexual markers, which were held to correspond to internal

388 Kinsella (2011, 67). 185 dispositions and traits—in the case of the laws of war, to innocence and guilt.”389 Indeed,

Vitoria makes the following claims in his discussion of civilian immunity:

First, it is never lawful in itself intentionally to kill innocent persons. This is proved, in the first place, by Exod. 23:7, where it says “the innocent and righteous slay thou not.” Second the foundation of the just war is the injury inflicted upon one by the enemy, as shown above (1.3 §13); but an innocent person has done you no harm. Ergo, etc. Third, within the commonwealth it is not permissible to punish the innocent for the crimes of the evil, and therefore it is not permissible to kill innocent members of the enemy population for the injury done by the wicked among them. Fourth, the war would otherwise become just on both sides, since it is clear that the innocent would also have the right to defend themselves. All this is confirmed by Deut. 20:10-20, where the children of Israel are commanded, when they have captured a city, to smite every male thereof with the edge of the sword, but to spare the women and the little ones.

It follows that even in wars against the Turks we may not kill children, who are obviously innocent, nor women, who are presumed to be innocent at least as far as the war is concerned (unless, that is, it can be proved of a particular woman that she is implicated in guilt). It also follows that one may not lawfully kill travelers or visitors who happen to be in the enemy’s territory, who are presumed innocent. And the same is true of clergy and monks, unless there is evidence to the contrary or they are found actually fighting in the war….390

This text shows that far from basing his claims about civilian immunity upon sexual markers, Vitoria believes that civilians should be spared the ravages of war because they are not guilty of engaging in wrongful behavior and they are not posing an unlawful threat against anyone else. These claims are clearly consistent with Principle #3 of the

Harmful Action model. It is true that Vitoria relies on visible sexual differences to apply the principle of distinction in practice, although even here he also relies on other markers as well, e.g. being a child or being a traveler in enemy territory, etc. What is clear is that

389 Kinsella (2011, 68). 390 Vitoria (1991, 314-315). 186 the discourse of gender does not constitute the distinction between combatants and non- combatants, at least for Vitoria.391

Hugo Grotius

Composed in 1625, Hugo Grotius’s The Laws of War and Peace is a foundational text in the history of international law, not to mention a powerful statement of early

Enlightenment thinking on the nature of the just war. Written as it was during the Thirty

Years War, The Laws of War and Peace was devised as a systematic analysis of international law, both the positive law of nations (the customary practices and conventions of peoples) and the law of nature discernible through the exercise of reason.392 In the years leading up to the writing of this seminal treatise, Grotius witnessed the untoward consequences of warfare firsthand: “Throughout the Christian world I observed a lack of restraint in relation to war, such as even barbarous races should be ashamed of; I observed that men rush to arms for slight causes, or no cause at all, and that when arms have been taken up there is no longer any respect for law, divine or human; it is as if, in accordance with a general decree, frenzy had openly been let loose for the committing of all crimes.”393 The Laws of War and Peace was thus written in an effort to discern the bounds of permissibility and impermissibility in the relations between peoples—to discern the middle ground between the extreme views that “nothing is allowable [in war], or that everything is.”394

391 See Carpenter (2006, 40-43). 392 Mikhail (2011, xv). 393 Grotius (1625, 20). 394 Grotius (1625, 20). 187

The Laws of War and Peace constitutes an early attempt to systematize the study of international law, and to that extent the breadth of this work far exceeds the narrow focus of this dissertation. Following many of his contemporaries, Grotius argued that there were five basic types of law: divine law, municipal or civil law, canon law, the law of nations, and natural law. Here I comment only his views regarding the law of nations

(or positive law to use a contemporary term) and natural law, or the law of nature.

Grotius believed that the law of nations is comprised of those norms and conventions that modern legal theorists would refer to as international law, in the sense of both

“customary” law and “treaty” law. In his view, the law of nations rests upon the

“common consent” of peoples.395 Natural law, however, rests upon “the principles of

[human] nature,” and since Grotius believes that humans are naturally reasonable and sociable, the principles of natural law can be discerned by interrogating the judgment of a fully rational, sociable individual.396 That is, we can determine the principles or right, or the principles of what is permissible and impermissible in war, by considering how rational, sociable individuals would respond to a particular practice or situation. If a rational individual deems a certain practice to be wrong, then such a practice is inconsistent with the law of nature. For Grotius, political violence is consistent with the law of nature just in case it does not invade the rights of another:

In the first principles of nature there is nothing which is opposed to war; rather, all points are in its favour. The end and aim of war being the preservation of life and limb, and the keeping or acquiring of things useful to life, war is in perfect accord with those first principles of nature. If in order to achieve these ends it is necessary to use force, no inconsistency with the first principles of nature is

395 Grotius (1625, 44). 396 Grotius (1625, 13). 188

involved, since nature has given each animal strength for self-defense and self- assistance…

Right reason, moreover, and the nature of society, which must be studied in the second place and are of even greater importance, do not prohibit all use of force, but only that use of force which is in conflict with society, that is which attempts to take away the rights of another…397

When it comes to the laws of war, Grotius argues that the contemporary law of nations permits states and soldiers to use violence on a mass scale. Indeed, he argues that soldiers not only have the right to kill other soldiers but that “this right of doing what is permissible has a wide application. In the first place it extends not only to those who actually bear arms, or are subjects of him who stirs up the war, but in addition to all persons who are in the enemy’s territory…. The reason is that injury may be feared from such persons also; and this is sufficient, in a prolonged and general war, to give rise to the right which we are discussing.”398 As Grotius points out, the claim that soldiers have a legal right to do this does not imply that it is right for them to do it, all things considered.

Instead, it implies that, under the law of nations (which derives from the consent of sovereigns) they cannot be punished for killing civilians.

For Grotius, considerations of moral justice imply that there should be restrictions on the use of force. He quotes Cicero thus: “there are certain duties which must be performed even toward those from whom you have received an injury. There is in fact a limit to vengeance and to punishment.”399 His account of who may legitimately be killed in war is, in my view, influenced by universally applicable principles of justice.

397 Grotius (1625, 52-53). 398 Grotius (1625, 646). 399 Grotius (1625, 722). 189

Now a person is killed either intentionally or unintentionally. No one can justly be killed intentionally, except as a just penalty or in case we are able in no other way to protect our life and property; although the killing of a man on account of transitory things, even if it is not at variance with justice in the strict sense, nevertheless is not in harmony with the law of love. However that punishment may be just, it is necessary that he who is killed shall himself have done wrong, and in a matter punishable with the penalty of death by a fair judge….400

In this passage, Grotius explicitly states some of the principles regarding the intentional infliction of harms that were discussed above in Chapter 2. Insofar as these precepts inform Grotius’s views on the morality of killing in war, it seems clear that he is basing them on propositions that have wide application.

Later on, he argues that nobody can be permissibly killed unless they act with an intent to do evil to some other individual, and to draw out this claim he references a threefold distinction in types of actions that goes back to Aristotle: misfortunes, faults, and wrongs. For Grotius, it is only permissible to kill someone as a result of a wrong that he or she has committed, not merely a misfortune or a fault, and even then the punishment must fit the crime. On his interpretation of Aristotle, “misfortunes are things which could not have been foreseen, and are not committed with evil intent; faults, things which could have been foreseen, yet are done not with evil intent; wrongs, things done purposely and with evil intent.”401 Grotius’s views on the permissibility and impermissibility of killing are consistent with the moral precepts in Chapter 2: he makes a strong distinction between intentional harms as opposed to unintentional harms and he believes that it is wrong to kill people who have done no wrong. It is these broader views

400 Grotius (1625, 723). 401 Grotius (1625, 727). 190 on the moral nature of intentional violence, not the discourses of gender, innocence, and civilization, that inform Grotius’s views on who may be permissibly killed in war.

When it comes to the morality of killing in war, Grotius claims that it is not permissible to intentionally kill those who do not take part in war. He makes this argument by first setting out a general principle and then deriving a specific set of applications.

Again, with regard to the destruction of those who are killed by accident and without intent, we must hold fast to the principle we mentioned above. It is the bidding of mercy, if not of justice, that, except for reasons that are weighty and will affect the safety of many, no action should be attempted whereby innocent persons may be threatened with destruction. Polybius is of the same opinion as ourselves, and in his fifth book speaks thus: “it becomes good men not to wage a war of annihilation even with the wicked, but to proceed only so far that crimes may be remedied and corrected; and not to involve the innocent in the same punishment as the guilty, but even to spare those who are guilty for the sake of the innocent.”402

When he derives more specific cases of this general principle, Grotius claims, quoting

Seneca, that children should be “excused by [their] age,” and “women by her sex.”403

The implication here is that children are innocent on account of their age, i.e. they do not take part in war because they are too young, and women are innocent because their sex

“exempts them from the very dangers of war.”404 However, Grotius does claim that this general statement “holds good, that is, unless women have committed a crime which ought to be punished in a special manner, or unless they take the place of men.”405

While Grotius certainly endorses a highly misogynistic image of women (e.g. he believes that they should be naturally subject to men), a manifest interpretation of his

402 Grotius (1625, 734). 403 Grotius (1625, 734). 404 Grotius (1625, 735-736). 405 Grotius (1625, 735). 191 arguments in these passages indicates that women function as a class of individuals, along with children, clergymen, peasants, and merchant, who exemplify a broader principle of people who generally do not take part in armed conflict.406 That is, he endorses a general principle regarding who can be killed in war and then moves on to set out a group of individuals who exemplify this principle. Of course, his argument does contain the “missing premise” that women, and not men, must be presumed innocent on account of their sex. Otherwise, there would be no need to make the claim that “unless women have committed a crime,” they should not be killed. If he did not simply adopt the socially constructed assumption that women are not potentially threatening to invading soldiers, such a claim would be superfluous. Hence, one might reasonably argue that Grotius is basing his conception of the principle of distinction on his acceptance of a gendered discourse. Yet, these passages suggest that he is not using a gendered discourse to constitute the principle of distinction. Indeed, he already claimed that the basis of losing one’s immunity consists in committing a crime, which implies that civilian immunity is grounded in a universal precept of innocence.

On Kinsella’s interpretation, however, this is exactly what Grotius is doing. She claims that Grotius

employs a particular form of reasoning in which the rule is illustrated through examples. A general principle is posited, from which its proof is deduced through an analysis of specific particular cases. On this move to special cases, the validity of the entire principle—that no innocent person can be threatened with destruction—rests. Accordingly, these special cases, through and by which the principle is exemplified and defined, illustrate the verity and legitimacy of the principle: ‘that children should always be spared; women, unless they have been

406 Of members of the clergy, Grotius claims that “the same principle is in general to be applied to men whose manner of life is opposed to war,” (1625, 736-737). Similar claims are made for farmers and merchants. 192

guilty of an extremely serious offense; and old men.’ With this, LWP contravenes the laws of nature and the laws of nature and laws of nations for they each allow the killing of children, women, and old men because all pose a potential harm and all have a potential right of self-defense.”407

Perhaps more clearly, Kinsella believes that the validity of the principle that “no innocent person can be threatened with destruction” rests upon the discourse of gender. She claims that the “discourses of gender both institute and stabilize the differences between those who should be spared and those who should not…”408 Unfortunately for Kinsella, the validity of the general principle does not rest in particular on any claim about gender, and indeed the fact that Grotius mentions several examples of innocent people who should not “be threatened with destruction” shows that the validity of the principle does not rest upon a discourse of gender. Grotius specifically mentions clergymen, men of letters (presumably including Grotius himself!), merchants, and peasants as examples of innocent people. Using examples such as this, one could just as easily argue that discourses of class or social function constitute and stabilize the distinction, but it is not clear that this would be true either. Likewise, if Grotius had meant to base his justification of the distinction on these more specific cases, rather than a general principle, perhaps he would have mentioned this in his initial statement of the principle.

In my view, it is much more plausible to read Grotius as implicitly relying upon the kinds of ethical precepts that constitute the grammar of moral discourse. As the quote on page 32 indicates, he clearly believes that it is wrong to intentionally kill innocent people because they have committed no moral wrongs (Principles #1 and #3 of the

Harmful Action model). In addition, he clearly believes that when the moral

407 Kinsella (2011, 77). 408 Kinsella (2011, 79). 193 considerations are sufficiently “weighty and will affect the safety of many,” it is permissible to implement military tactics that incidentally threaten the lives of innocent people, which is consistent with the rule of proportionality in Principle #2 of the Harmful

Action model.409

John Locke and Immanuel Kant

Does Kinsella’s account of the principle of distinction apply to other thinkers?

Although she does not address the work of Kant or Locke, it seems plausible to suppose that similar claims might be made of their work. That is, if discourses of gender, innocence, and civilization constitute the principle of distinction, then we should expect to see evidence of this in other canonical works in the Western tradition.

In Chapter XVI of his Second Treatise of Government, John Locke considers the question of whether conquest can constitute a legitimate basis of government. Having argued earlier that the common consent of the people is the basis of all legitimate forms of government, he considers whether conquest might serve as a legitimate foundation for authority. In response to this, Locke claims that “conquest is far from setting up any government, as demolishing an house is from building a new one in the place,” and aggressors in an unjust war have “no title to the subjection and obedience of the conquered.”410 By implication, Locke is arguing that the armies of unjust conquerors do not even have the right to target enemy combatants who threaten their lives.411 In an unjust war of aggression, the defenders of enemy territory are allowed to kill invading

409 Grotius (1625, 734). 410 Locke (1690, 92). 411 For a contemporary statement of this view, see McMahan (2009). 194 soldiers, but invading soldiers are not allowed to kill them in response. Thus, in an unjust war, it makes no sense to distinguish between combatants and non-combatants because, by implication, combatants and non-combatants are not guilty of imposing an unjustified threat against the conqueror. They are simply defending their moral rights, granted to them by what Locke calls the law of nature.412

In just wars of conquest, however, the principle of distinction remains highly relevant. In these cases, Locke argues that

the conqueror gets no power but only over those who have actually assisted, concurred, or consented to that unjust force that is used against him: for the people having given to their governors no power to do an unjust thing, such as is to make an unjust war, (for they never had such a power in themselves) they ought not to be charged as guilty of the violence and injustice that is committed in an unjust war, any further than they actually abet it; no more than they are to be thought guilty of any violence or oppression their governors should use upon the people themselves, or any part of their fellow subjects, they have empowered them no more to the one than to the other. Conquerors, it is true, seldom trouble themselves to make the distinction, but they willingly permit the confusion of war to sweep all together: but yet this alters not the right; for the conquerors power over the lives of the conquered, being only because they have used force to do, or maintain an injustice, he can have that power only over those who have concurred in that force; all the rest are innocent; and he has no more title over the people of that country, who have done him no injury , and so have made no forfeiture of their lives, than he has over any other, who, without any injuries or provocations, have lived upon fair terms with him.413

Later on, Locke claims “the right…of conquest extends only to the lives of those who joined in the war, not to their estates, but only in order to make reparation for the damages received, and the charges of the war, and that too with the reservation of the right of the innocent wife and children.”414 Using Kinsella’s approach, one might argue

412 In Locke’s Second Treatise of Government, the law of nature holds that individuals are not permitted to harm themselves or others in their “life, health, liberty, or possessions,” (1690, 9). 413 Locke (1690, 93). 414 Locke (1690, 95). 195 that the examples of the “innocent wife and children” inform Locke’s analysis of who should be spared in war. However, a more natural interpretation of Locke’s views on the nature of the combatant/non-combatant distinction is that he is deriving this claim from more general views about the nature of justice. Having established that the “law of nature” enjoins respect for the person and property of others and that it is only permissible to harm others for the purpose of exacting “justice on an offender,” Locke claims that in just wars military forces have no rights over those who have not “assisted or concurred” in the unjust use of force. To make this claim, Locke makes no clear reference to the discourse of gender, or to any other discourses for that matter. Rather, he simply draws out the conclusions of a principle of justice that I have shown has wide application to Western and non-Western civilizations. Calling attention to this universal principle of justice and its basis in the nature of the human mind, the universal grammar theory of discourse and norms gives us a much clearer interpretation of the foundations of the norms of war in the Western world.

Similarly to Locke, in his Metaphysics of Morals, Kant argues that states have no rights over the persons or property of the civilian population.

In war it is permissible to exact supplies and contributions from a defeated enemy, but not to plunder the people, that is, not to force individual persons to give up their belongings (for that would be robbery, since it was not the conquered people that waged the war; rather, the state under whose rule they lived waged the war through the people). Instead, receipts should be issued for everything requisitioned, so that in the peace that follows the burden imposed on the country or province can be divided proportionately.415

Unlike Locke, Kant makes no reference at all to gender differences, nor does he make any clear references to the discourse of civilization. Hence, it makes little sense to say

415 Kant (1797, 117). 196 that political theorists necessarily rely upon these discourses in order to mark the distinction between civilians and combatants. Once again, the moral grammar theory of discourse and norms provides a more natural interpretation of Kant’s discussion of civilian immunity: he draws this distinction because civilians are not guilty of unjustly threatening the lives of other people.

In this section, I have argued that it makes more sense to interpret the seminal texts on the laws of war in Western civilization as expressions of universal precepts of right and wrong, or expressions of the grammar of moral discourse as some moral theorists and cognitive scientists have suggested, rather than as expressions of the socially constituted discourses that Kinsella emphasizes. Kinsella raises several important points about the nature of the principle of distinction, but her analysis fails to show that the civilian immunity norm is necessarily constituted by the discourses of gender, innocence, and civilization. Importantly, this shows that in order to unpack the semantic meaning of the laws of war in Western society, we need not call attention to

“thick” structures of collective knowledge. Instead, the moral grammar theory of discourse and norms provides us with a plausible understanding of how and why actors distinguish between combatants and non-combatants. This may not be sufficient to “test” the universal grammar account of the laws of war, but it does provide a useful comparison between two competing interpretations of the sources of the laws of war in

Western civilization.

Conclusion

197

This chapter concludes my defense of the claim to universality in the moral grammar theory of discourse and norms. I have argued that the moral precepts outlined in Chapter 2 of this dissertation apply quite broadly to the norms and discourse on war in

Western and non-Western civilizations. In my view, the phenomenon of norm convergence cannot adequately be explained on any of the existing accounts of norms and institutions in IR theory, and in the last three chapters I have shown that the ethical precepts that underlie the contemporary norms of war are more common in the history of advanced civilizations than many scholars are willing to admit. In the following chapter,

I continue my analysis of the laws of war in modern international society by looking at the development of the humanitarian protection regime in the late 19th and early 20th century. In this chapter, I have outlined the early social and intellectual forces that underpinned the development of the modern international humanitarian regime, starting with the early Catholic just war tradition and moving up to the rise and spread of liberal ideals during the European Enlightenment. Likewise, I have shown that the grammar of moral discourse is not thin on semantic content, but rather it provides a plausible interpretation of the deep meanings that underlie the norms of war in Western society.

198

Chapter 6: Moral Discourse and the Laws of War in Modern International Society

From the perspective of international relations, the 20th century can paradoxically be regarded as a century of immense progress. Notwithstanding the savage cruelty of

World War I and World War II, the senseless conflicts that surrounded the Cold War rivalry, and the explosions of ethnic violence in Rwanda and the former Yugoslavia in the 1990s, the story of the 20th century should be seen as one of moral renewal in the face of human tragedy.416 At perhaps no other point in human history had the peoples of the earth been more closely interconnected by international economic and political institutions than in the late 20th century, and at perhaps no other time had the ideals of universal human rights so influenced the culture of international society. Although the lofty objective of achieving universal respect for human rights and for basic principles of international justice seems ever beyond our grasp, the experiences of the previous century indicate that the history of international society is a history of moral progress, a history that has witnessed the development of institutions that extend greater recognition to the inherent dignity of human beings. In this chapter, I analyze a central component of this broader historical trajectory: the development of international humanitarian law in the

20th century.

416 See Goldstein (2011). 199

As an essential component of modern international law, international humanitarian law is rooted in the customary traditions of warfare in European society, traditions that evolved into the secularized system of law that is reflected in the Hague and the Geneva Conventions. Over the span of the 20th century, the international humanitarian regime grew progressively more complex and set more restrictions on the strategies, tactics, and weapons that states are permitted to use in military conflicts. Up until the late 19th century, however, few codified laws restrained the use of military force in world politics, and those that did were inchoate and underdeveloped, nothing like the array of legal instruments that exist in the modern era. The conventional laws and customs of war did not generally sanction blatant violence and inhumanity against civilians or soldiers, but the ideas of civilian immunity and restrictions on unnecessary suffering that are at the center of international humanitarian law were not nearly as well developed nor as precise as they are in modern international society. Since the early

Middle Ages, the laws of war have evolved from loosely organized customary norms into precise legal restrictions designed to protect the personal integrity of all human beings, both soldiers and civilians alike.

For many IR theorists, constructivists in particular, the evolution of international law in the 20th century is viewed as a process whereby states came to internalize new norms of legitimate social action—norms that enjoin respect for individual human rights.

As Martha Finnemore points out, humanitarian norms such as the 1863 Geneva

Convention, which gained neutrality for medical personnel, emerge through social processes of contestation whereby norm entrepreneurs build support for new ideas. Henri

200

Dunant, the founder of the International Committee of the Red Cross, “was a world- cultural ‘entrepreneur’ whose action was not power seeking or utility maximizing.”417

Dunant’s action [of supporting the 1863 Geneva Convention] does not make sense in any consequentialist framework. His action makes much more sense when understood as the product of a “logic of appropriateness.” The discussions surrounding the adoption of the Geneva Conventions and subsequent compliance were not about interests and advantage. They were discussions about duties, responsibility, and identity. They were discussions about appropriate and necessary behavior. Dunant framed his appeal in terms of responsibilities of Christian gentlemen and civilized nations. Leaders justified decisions to sign and comply on the basis of religious and moral duties borne by civilized nations…

Agency in this case [was] driven not by interest, conventionally understood, but by a cultural model of Christian charity and humanitarian duty constructed by Dunant and his colleagues from existing cultural principles and applied in new ways to the conduct of war.418

As we have seen in the last three chapters, these claims are not entirely true: humanitarian ideas are not Western-centric nor do they depend upon models of Christian charity and duty. Political actors in Ancient China and the early Islamic empire endorsed similar ideas for restraining armed violence in inter-state relations, and the notion of Christian charity does not constitute the foundation of the modern laws of war. The modern laws of war are rooted in universal moral rules.

Although the norms of war in Western international society have developed significantly over the course of the last several centuries, these developments do not represent a fundamental cognitive or cultural shift in the way that actors evaluate the use of military force. For the most part, these developments represent an attempt to codify preexisting moral beliefs into the canon of public international law, not a major shift in how people morally evaluate the use of force. With respect to the rules of war, the major

417 Finnemore (2005, 163). 418 Finnemore (2005, 163-164). 201 difference between early Europe and modern international society concerns not the content of the rules themselves, but the positive institutions that give them practical expression. In the early Middle Ages, the notions of state sovereignty and international diplomacy were non-existent. By the late 19th century, international law was a fairly well-developed system for regulating relations between states; furthermore, states increasingly relied on face-to-face diplomacy to manage their disputes.419 The increasing reliance on international law and multilateral diplomacy explains why it took until the

19th and 20th centuries for states to converge on fully codified regime of humanitarian norms for protecting the victims of war. Prior to the development of public international law and multilateral diplomacy, political actors simply did not use positive norms for protecting civilians. However, this does not mean that they did not generally believe that it is wrong to attack non-combatants. It simply took time for these moral beliefs to be fully reflected into the canon of public international law.

Thus, in response to constructivists like Finnemore, I claim that the development of the Hague Conventions and the Geneva Conventions in the 19th and 20th centuries do not signal the emergence of new beliefs regarding the morality of killing in war. Instead, they signal a new way of dealing with an old problem. As I have demonstrated in the previous chapters, killing civilians in war is recognized universally as a serious moral problem: the Hague and the Geneva Conventions were merely a new way of dealing with it. My claim is that these moral beliefs do not rest upon socially constructed cultural discourses of Christian charity or Western liberalism, but rather they rest upon the universal grammar of moral discourse. To provide further evidence for this claim, here I

419 See Mitzen (2005), Mitzen (forthcoming), and Holmes (forthcoming). 202 analyze the development of the laws of war in the 19th and 20th centuries. To simplify my analysis and to adopt the standard distinction in international legal scholarship between the law of The Hague and the law of Geneva,420 I cluster my examination into two segments, looking first at the 1899 and 1907 Hague Peace Conferences and then discussing the 1949 Geneva Conferences and the 1974-1977 conferences on the

Additional Protocols to the Geneva Conventions.

Focusing exclusively on those deliberations that centered around the ideas of civilian immunity, military necessity, and restrictions on inflicting unnecessary suffering,

I claim that the grammar of moral discourse underwrites the normative content of international law421 by influencing how actors frame their arguments in the context of public discourse. While some evidence does indicate that states decided to codify the laws of war to overcome collective action problems, and that a rationalist interpretation of the humanitarian regime may thus be adequate, I claim that rationalism tells us very little about the normative content of the laws of war, i.e. the moral beliefs that underlie the humanitarian protection regime. Self-interested states certainly use moral principles to justify their preferences and claims in public,422 but this does not tell us how they converge upon certain principles, or why they believe that certain military strategies are permissible or impermissible. To be sure, states have self-interested reasons for wanting

420 International humanitarian law is generally divided into two major components: the law of The Hague and the law of Geneva. Whereas the Hague Law is designed primarily to set restrictions on the means and methods of warfare, the Geneva Law is designed to protect the victims of warfare, whether they are civilians, the wounded and shipwrecked at sea, or prisoners of war. 421 See Mikhail (2011, xv). 422 As Jennifer Mitzen points out, “selfishness expressed in public must be rendered in terms acceptable to all,” (2005, 411). 203 to protect their own civilians and soldiers, and the rules of international law help states reach a cooperative outcome that satisfies these interests.423

But the international humanitarian law is based upon moral beliefs, not strategic preferences or expected utility calculations. Not only does the discursive evidence show that states adopt humanitarian norms without making clearly calculated judgments, but in addition states adopt norms that do not clearly “fit” with the rational design framework.

First off, reciprocal attacks on civilians are illegal, which takes an important rationalist mechanism for enforcing the laws of war off the table, at least according to the letter of the law.424 Second, rationalists have a difficult time explaining why states have opted to restrict the use of weapons that cause unnecessary suffering for combatants. Without presupposing that state actors entertain moral beliefs that proscribe the infliction of unnecessary suffering, it is difficult to explain why they use arguments that express such concerns or why they would (rationally) design laws that reduce the suffering of combatants, yet restrain what they can do on the battlefield. Lastly, rationalism cannot adequately explain why states have opted to outlaw all intentional attacks on non- combatants rather than adopting the compensation rule spelled out in Chapter 1.

Finally, I claim that the realist emphasis on material power tells us almost nothing about the development of international humanitarian law in the 20th century. While it is certainly true that powerful actors have exercised a domineering influence over the diplomatic conferences that led to the Hague Conventions, the Geneva Conventions, and the Additional Protocols, realism does not explain why states, much less the great

423 See Morrow (2007). 424 See Article 51 (6) of Additional Protocol (I), 1977. 204 powers, would even bother creating laws of war. If the powerful can do what they want, and the weak suffer what they must, why would powerful states adopt any constraints on their behavior in war? The evidence does show that states often try to water down the laws of war, but realism would lead us to believe that they should not even waste their time engaging in diplomatic conferences that produce nothing but useless treaties. In fact, some scholars claim that states have powerful strategic incentives to attack civilians in war,425 and so realism does not explain why states create laws that legally, albeit not always in fact, take this option off the table. States may decide to create relatively permissive laws of war in order to legitimate their practices, as critical legal scholars argue,426 but this tells us very little about why they create particular kinds of laws, i.e. laws that outlaw intentional attacks on civilians or that require states to refrain from inflicting unnecessary suffering on enemy combatants. Hence, realism is inadequate for explaining the development of the laws of war in the 20th century.

In this chapter, my central claim is that in order to understand the development of

IHL in the 20th century, IR theorists need to accept the generative grammar account of moral discourse and norms. Not only does this theory of moral discourse locate the foundations of the laws of war in human psychology, but it also helps us understand why there have been persistent attempts throughout the last two centuries to increase the level of protections for the victims of warfare. Efforts to extend humanitarian protections generally follow in the wake of emotionally salient events like World War II, events that

“shock the conscience” of humanity, or from technological and political developments

425 See Downes (2008). 426 See Jochnick & Normand (1994). 205 that reveal inadequacies in existing instruments of humanitarian law.427 This theory helps us better understand why these kinds of events shock the moral conscience of humankind or why people see existing norms as “inadequate” to new political and technological developments. Hence, it is crucial for explaining the development of the humanitarian protection regime in the 19th and 20th centuries. At the very least, a more clearly psychological approach to the study of moral discourse in IR scholarship is necessary for explaining the emergence of humanitarian protection norms.

This chapter is organized as follows. I devote one section each to the Hague law and the Geneva law, and in each section I outline the historical background and political context of the diplomatic conferences that led to the Hague Conventions of 1899 and

1907, the Geneva Conventions of 1949, and the Additional Protocols to the Geneva

Conventions of 1977. To evaluate my argument and to organize my analysis of the data,

I explicitly looked for evidence that would disconfirm my theoretical framework. In particular, I looked for the following kinds of evidence:

1. Evidence showing that humanitarian protection norms are rooted in power

politics. If actors disagreed over the design features of international humanitarian

norms, I analyzed the debates to determine whether these differences were rooted

in power inequalities. If they were rooted in power inequalities, I analyzed how

actors framed their arguments to determine whether the universal grammar theory

of moral discourse adds substantially to our knowledge. I claim that this theory

427 As I discuss below, technological advances such as the creation of hollow-tipped bullets and political developments like decolonization have influenced the historical trajectory of the development of the laws of war. 206

does add to our knowledge by shedding light on how actors frame their arguments

in public discourse.

2. Evidence showing that any actors reject the principles set forth in Table 1 in

Chapter 2, i.e. the Principles of the Harmful Action Model. I found no evidence

suggesting that anyone sincerely believed it is morally permissible to intentionally

target civilians in war. However, I did find evidence suggesting that some states

at the diplomatic conference on the Additional Protocols had qualms about

implementing a rule of proportionality in IHL, and I deal with this problem in the

section on the Geneva law.

3. Evidence suggesting that humanitarian protection norms are rooted in strategic

calculations. I analyzed the debates to determine whether actors weighed

competing rules and how they decided upon the alternatives. While the evidence

does suggest that states tried to select rules that would give them a strategic

advantage, it does not suggest that their arguments or choices were based entirely

on expected utility calculations or strategic preferences. In these conferences

states take it for granted that intentional attacks on innocent people are

impermissible, and they never even consider adopting the compensation rule that I

discussed in Chapter 2. Since they do not consider all reasonable alternatives,

even rules that can be expected to protect civilians more fully and efficiently, we

have reason to believe that the rules of the humanitarian regime are not based on

strategic calculations.

207

The Hague Peace Conferences of 1899 and 1907

The Historical and Political Context of the 1899 Conference

As with many international conferences, the Hague Peace Conference of 1899 arose through a mixture of high-minded idealism and diplomatic intrigue. Initially proposed by Czar Nicholas II of Russia, the conference was intended to control the production of arms in Europe and Russia. At the time, the Russians were fearful that any increases in military expenditures to keep up with the production of armaments in Austria would threaten the financial stability of their government. In an effort to cloak the strategic and financial interests of his government in a shroud of flowery language emphasizing humanitarianism and world peace, Czar Nicholas II circulated a letter to foreign diplomats in St. Petersburg to request their cooperation in convening an international peace conference. On the morning of August 24, 1898, the Russian Foreign

Minister, Count Muraviev, distributed the Czar’s letter, which stipulated that

…the imperial government believes that the present moment would be very favorable for seeking, by means of international discussion, the most effective means of ensuring to all peoples the benefits of a real and lasting peace, and above all of limiting the progressive development of existing armaments.428

While moral considerations may have played some role in influencing the Czar’s decision to convene an international conference, the most plausible explanation for this historic decision lies in Nicholas II’s concern over the political and economic fate of his government.429 According to one historian, humanitarian considerations were the “least important” factor in motivating the Russian government to propose the conference.430

428 Scott (1915, xiv). 429 Ford (1936, 381-382). Also, see Best (1999) and Davis (1962). 430 Ford (1936, 381) 208

A great deal was said about lofty idealism, humanitarian motives and so forth, but the characters of the persons who said it and who were responsible for the conference idea give logical corroboration to the conclusion that in spite of their lip service to the ideal of human welfare, its principal interest for them was in the excellent “front” it provided for their scheme [of controlling the arms race with Austria].431

Not surprisingly, the Russian proposal was treated with a great deal of skepticism by foreign diplomats, but as an immense opportunity by the advocates of the peace movement. In a second rescript to foreign diplomats, Count Muraviev suggested that the parties to the conference should adopt three basic tasks: (1) to reduce armaments, (2) to develop the outlines of an international arbitral body for peacefully adjudicating international disputes, and (3) to update and codify the law and customs of warfare.

More specifically, he stated that “the subjects to be submitted for international discussion at the conference could in general terms, be summarized as follows:

1. An understanding stipulating the non-augmentation, for a term to be agreed upon, of the present effective armed land and sea forces, as well as the war budgets pertaining to them; preliminary study of the ways in which even a reduction of the aforesaid effectives and budgets could be realized in the future. 2. Interdiction of the employment in armies and fleets of new firearms of every description and of new explosives, as well as powder more powerful than the kinds used at present, both for guns and cannons. 3. Limitations of the use in field fighting of explosives of a formidable power, such as are now in use, and prohibition of the discharge of any kind of projectile or explosive from balloons or by similar means. 4. Prohibition of the use in naval battles of submarine or diving torpedo boats, or of other engines of destruction of the same nature; agreement not to construct in the future war-ships armed with rams. 5. Adaptation to naval war of the stipulations of the Geneva Convention of 1864, on the base of the additional articles of 1868. 6. Neutralization, for the same reason, of boats or launches employed in the rescue of the shipwrecked during or after naval battles. 7. Revision of the declaration concerning the laws and customs of war elaborated in 1874 by the Conference of Brussels, and not yet ratified.

431 Ford (1936, 381-382). 209

8. Acceptance, in principle, of the use of good offices, mediation, and voluntary arbitration, in cases where they are available, with the purpose of preventing armed conflicts between nations; understanding in relation to their mode of application and establishment of a uniform practice in employing them.432

The initial rescript had merely suggested the reduction in armaments and the creation of an international arbitral body for peacefully adjudicating international disputes.

However, in the second rescript, Count Muraviev suggested that states update the laws and customs of warfare. Interestingly enough, the Hague Peace Conference of 1899 was far more successful in updating the laws of war than it was in advancing the ideals of disarmament. As historian Adam Roberts notes,

The 1898 rescript naturally had been interpreted to mean that the conference thus summoned was a disarmament conference; and it was persistently so called. When it met at The Hague in 1899, the peace conference achieved nothing in the field of disarmament and was thus dismissed as a complete failure by most of the journalists covering it—an early example of the perennially poor coverage of the laws of war in the press. The Russian efforts to stop the manufacture and/or use of new weapons and materials failed almost completely…433

Prior to the 1899 Hague Peace Conference, there had been few successful efforts toward codifying the rules of conduct during armed disputes. The fact that delegates to this conference made progress in codifying the law and customs of war is more than enough to merit the conclusion that their efforts were not in vain. Since the objective here is to evaluate the universal grammar account of the laws of war, in what follows I focus exclusively on those aspects of the conferences that dealt with imposing restrictions on using force against the civilian population in land and naval war and those that dealt with imposing restrictions on the use of particular types of weapons. From the perspective of the modern international humanitarian regime, the debates over the law

432 Quoted in Brown (1915, xviii). 433 Roberts (1994, 121). 210 and customs of war at the 1899 Hague Peace Conference were significant for two reasons: (1) they led to the adoption of the now-famous Martens Clause; and (2) they led to restrictions on weapons that inflict unnecessary suffering.

Civilian Immunity at the Hague Conference of 1899: The Law of Military Occupations and the Martens Clause

“Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience.”434

Since its initial articulation at the first Hague Peace Conference in 1899, the

Martens Clause (quoted above) has come to be regarded as a foundational component of international humanitarian law.435 Not only has the clause been restated in a wide variety of important treaties and conventions, but in addition it had an influence on legal thinking at the Nuremburg trials that prosecuted Nazi war criminals in the aftermath of World War

II, and thus it seems clear that the clause has had an important effect on political practice and international jurisprudence alike. As specified in the quote above, the Martens

Clause was intended to extend legal protection to members of the civilian population and to belligerent forces in cases that do not clearly fall within the purview of the regulations

434 Hague Convention II with Respect to the Law and Customs of War on Land, July 29, 1899. With important modifications, the Martens Clause has been subsequently restated in several international conventions, including “the 1949 Geneva Conventions for the Protection of Victims of War,” (Meron 2000, 78). 435 Meron (2000, 79). 211 set forth in the Hague Convention on the Law and Customs of War. Recognizing the intrinsic difficulty of developing positive rules that can adequately cover all possible contingencies that may arise in the midst of armed conflict, the delegates at the 1899

Hague Conference adopted the clause to set restraints on the arbitrary use of military power and to reject the principle that “all that is not prohibited [in war] is allowed.”436

By approaching “the questions of the laws of humanity for the first time not as a moral issue but from [an apparently] positivist … perspective,” the Martens Clause represents an “ingenious blend of natural law and positivism.”437

The Martens Clause was inserted into the preamble of the Hague Convention on the Law and Customs of War to overcome a diplomatic stalemate between weak and powerful states at the 1899 Conference. Hence, the deliberations that led to its articulation provide an excellent opportunity to evaluate the universal grammar theory of discourse against realism and rationalism. I claim that the shared rules of moral discourse framed how the powerful and the weak couched their strategic arguments at the

1899 conference: they were overwhelmingly concerned about instituting mutually acceptable rules that would serve to protect the innocent and that would restrain the arbitrary or unnecessary use of military power. It was the acceptance of these basic moral considerations that enabled the delegates at the 1899 conference to support the

Martens Clause, which in turn was instrumental in safeguarding the overall effort to codify the laws and customs of war in 1899.

436 Pustagarov (1999, 131). 437 Cassese (2000, 188). 212

The deliberations that led directly to the adoption of the Martens Clause emerged within the context of a broader debate between the representatives of powerful states and the representatives of weak states over the rights and obligations of belligerent forces vis-

à-vis occupied peoples. The first two chapters of the 1874 Brussels Declaration (Article I through Article XI) were intended to define the terms of military occupation and to spell out the characteristics that individual combatants must satisfy in order to qualify as lawful combatants that are entitled to prisoner of war status upon capture.438 As one might expect, while the representatives of powerful states were against any proposition that would extend legal recognition to civilians who spontaneously rise up in rebellion against an occupying force, the representatives of weak states wanted the delegates to accept the notion that civilians can rise up to resist incursions into their territory and that they should be regarded as lawful combatants who are not “subject to execution” upon capture.439 Interestingly enough, powerful states such as Germany argued that those if civilians in occupied territory are given greater leeway in rising up in resistance against an occupying power, this may incidentally threaten the lives of civilians. If such individuals are not required to join an army or an organized militia to attain lawful combatant status, then “regular troops” in occupied territories will be “unable to tell

438 Article 9 of the Brussels Declaration of 1874 held that “the laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions: (1) that they be commanded by a person responsible for his subordinates; (2) that they have a fixed distinctive emblem recognizable at a distance; (3) that they carry arms openly; and (4) that they conduct their operations in accordance with the laws and customs of war….” Article 10 held that “The population of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with article 9, shall be regarded as belligerents if they respect the laws and customs of war.” 439 Ticehurst (1997). 213 whether they have before them peaceful peasants or enemies for combat.”440 Hence, even the more powerful states defended their strategic interests here by claiming that rules favorable to them will better protect civilians.

According to some scholars, the positions of the strong and weak states threatened to bring the deliberations on the laws and customs of war to a standstill: without a substantive agreement on the rights and duties of occupying powers, this important component of the 1874 Brussels Declaration would fail to be codified. To prevent this from happening, Martens proposed that the delegates endorse the following proposition:

“until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.”441 This proposal effectively helped the representatives of strong and weak states meet half way: while it clearly recognizes “the possibility…that there [may] exist principles or customary rules of international law granting the status of lawful combatants to nationals of an occupied country,” it also upheld the “relevant provisions of the Brussels

Declaration” that met the demands of the powerful.442 To the extent that the impasse between the weak and strong threatened the objective of codifying the law and customs of war, the Martens Clause represented a clever maneuver that enabled the delegates to endorse, with some important modifications, the 1874 Brussels Declaration.

440 Scott (1920, 552). 441 Hague Convention II with Respect to the Law and Customs of War on Land, July 29, 1899. 442 Cassese (2000, 18). 214

How is the debate over the Martens Clause relevant for understanding the normative basis of civilian immunity? A plausible interpretation of the clause suggests that the delegates implicitly intended to have it serve as the basis for civilian immunity in customary international law. While some scholars are inclined to draw the conclusion that the Martens Clause was a mere “diplomatic ploy” that served to break an impasse between the weak and the powerful,443 the evidence suggests a far more complex interpretation. The clause was certainly instrumental in overcoming the objections of small powers and in meeting the demands of the great powers, and so one might reasonably conclude that its most significant effect was to “remit…to customary international law the major bone of contention, namely the question of which persons not belonging to the armed forces of the occupied country might be regarded as lawful combatants in occupied territory.”444 Regardless, the persistent use of articulate moral arguments provides us with a window into the moral considerations that underpinned the broad acceptance of this important component of contemporary IHL—specifically those considerations that have to do with the idea of civilian immunity. According to some international legal scholars, the reference to the “laws of humanity” in the last part of the clause incorporates three basic principles of customary inter-national law:

(i): that the right of parties to choose the means and methods of warfare, i.e. the right of parties to choose the means of injuring the enemy, is not unlimited; (ii) that a distinction must be made between persons participating in military operations and those belonging to the civilian population to the effect that the latter be spared as much as possible; and (iii) that it is prohibited to launch attacks against the civilian population as such.445

443 Cassese (2000). 444 Cassese (2000, 197). 445 Report on the situation of human rights in Kuwait under Iraqi occupation, paragraph 36, UN Document E/CN.4/1992/26. Quoted in Meron (2000, 83). 215

While the delegates tended to disagree over the precise legal rights and obligations of military forces vis-à-vis the civilian population of an occupied state, they did not disagree over the significance of setting due restraints on the arbitrary use of military power nor did they disagree with the principle that civilian lives should “be spared as much as possible.” An interest in reaching some agreement over the law and customs of war seems to have been an important motivating factor behind adopting the

Martens Clause: without the clause, it would have been difficult for great and small powers alike to have reached a consensus on the Brussels Declaration. An implicit acceptance of basic moral considerations that require military commanders and their soldiers to respect the rights of the civilian population and to refrain from the excessive and arbitrary use of power was equally important in building support for the clause and for the 1899 Hague Convention on the Law and Customs of War as a whole.

Even though the distinction between soldiers and civilians was not nearly as well developed in 1899 as it is at the present time, it seems clear that the delegates at the conference did accept the idea that military personnel should refrain from deliberately attacking the civilian population. Furthermore, it seems that the implicit reason for endorsing the distinction consisted not merely in the fact that civilians fail to present a threat to the lives of soldiers but more importantly that they have general done nothing to give up their right not to be killed. As Martens pointed out on a number of occasions, the reason for codifying the laws of war had to do with the importance of protecting the

“innocent” and the “inoffensive,” terms which seem to clearly refer to unarmed members

216 of the civilian population.446 The way such concepts were used in the deliberations indicate that the delegates accepted the idea that military forces should not be permitted to deliberately attack anyone who fails to present an intentional threat to the lives of invading soldiers. In fact, in a speech on the necessity of codifying the laws and customs of warfare, particularly the articles of the Brussels Declaration, Martens made the following points:

Before beginning the discussion of the most important articles of the Brussels Declaration of 1874, I will ask permission to submit some consideration to you regarding the history of these provisions. His majesty the Emperor Alexander II, being imbued with an idea of the importance of forming rules relating to the laws and customs of war in time of peace, when the minds and passions of people are not inflamed, took the initiative in convoking the Brussels Conference of 1874. The Emperor had in mind the well-known historical facts, which demonstrate how in war time mutual recriminations and mutual hatred aggravate the inevitable atrocities of warfare. Moreover, the uncertainty of the belligerents regarding the laws and customs of war provokes not only hatred but also useless cruelties committed on the field of battle…

The importance of that declaration consists in the following: for the first time an agreement was to be established between Powers regarding the laws of war really binding on the armies of the belligerent states, in order to shield the innocent, peaceful, and unarmed populations against useless cruelties of war and the evils of invasion where not required by the imperious necessities of the war….

Now that we have reached the most important articles of the Brussels Declaration, it would be a pity to leave in a vague condition the questions which relate to the first articles on occupation and combatants. I know it is said that we ought to leave the solution of these questions to the practice of war, to the generally recognized principles of the law of nations, and, finally, to the hearts of the captains, commanders in chief, and military authorities. But, gentlemen, the heart has purposes which the mind does not understand and in time of war only one purpose is recognized, and that is the purpose of the war…

Our present task is to remind peoples of their duties, not only in time of peace but also in time of war. Our mission has been well defined from the very beginning of our common labors: we wish to elaborate, in a spirit of concord, humanity, and justice, the uniform bases for the instructions which the governments will pledge

446 Scott (1920, 506, 551). 217

themselves to give to their armed forces. We have always recognized the imperious law of the inexorable necessities of war. We do not wish either to encroach on the rights of military independence of states, or to close our eyes before the differences which exist in the situations of states represented here, at the Conference. However, permit me to believe that we are unanimous in the desire to mitigate, as far as possible, the cruelties and disasters in international conflicts which are not in any wise rendered inevitable by the necessities of war…447

This speech clearly shows that some of the delegates at the Hague Peace Conference were motivated to design a treaty on the laws and customs of war so as to protect the legitimate interests of the civilian population.

However, the speech also shows that some delegates accepted it as a “fact” that civilians often die as a result of military conflicts. Here, Martens seems to suggest that incidental civilian deaths are permissible provided that they are justified by considerations of military necessity. In another context, Martens claimed that “it is not against the necessities of war, but solely, I repeat, gentlemen, against the abuses of force that we wish to be guaranteed.”448A plausible interpretation of such statements is that the delegates wanted to allow for the “necessities” of war and to restrict the use of force within mutually acceptable bounds, a restriction that would serve to protect the interests of soldiers and civilians alike. Overall, the deliberations that led to the adoption of the

Martens Clause and the Convention on the Law and Customs of War in 1899 provide support for the universal grammar account of moral discourse. The speeches referenced above indicate that the major actors, including powerful states, endorsed the idea that the laws and customs of war are intended to prohibit the arbitrary use of military power against the civilian population.

447 Scott (1920, 505-507). 448 Scott (1920, 518). 218

Restrictions on Weaponry at the 1899 Conference: Preventing Unnecessary Suffering

As Jean Pictet, the former director of the International Committee of the Red

Cross, once suggested, “it is clear that in the eyes of the victim all suffering is superfluous and any injury is unnecessary.”449 In the eyes of international humanitarian law, however, the idea of necessity is understood differently: any amount of physical, mental, or moral suffering is regarded as unnecessary if it is over and above the amount of suffering required to render a combatant hors de combat or “unfit for battle.” Deriving from a principle that goes back to the 1868 St. Petersburg Declaration, the idea of

“‘military necessity’ is…given a…precise scope [in contemporary international law]: to inflict physical or psychological harm is justified only insofar as it is really necessary to attain the military advantage intended.”450 If the demands of a militarily legitimate objective do not necessitate the infliction of extreme physical or mental suffering, including but not limited to the causing of death, states are legally required to take steps that minimize the damage of war. In the elegant words of Captain Scheine, a delegate at the 1899 Conference, the dictates of humanity require that states find “means of putting enemies out of action without putting them out of the world.”451 To this one might add that international law requires states to adopt ways of achieving legitimate military objectives without needlessly increasing the pain and suffering that follows in the wake of war.

449 Commentary on Additional Protocols to the Geneva Conventions, page 407. 450 Oeter (2008, 130). 451 Brown (1920, 283). 219

While the 1899 Conference was regarded as a failure in terms of its ability to decrease the arms race in Europe, it did make notable headway in the direction of limiting the types of weapons that states can legitimately use in war. In accordance with the universal grammar theory of moral discourse, the idea that states should outlaw weapons that are either indiscriminate or that cause an amount of suffering that is militarily unnecessary influenced the deliberations on weapons technology at the 1899 Conference.

Indeed, in contemporary international law, the 1899 Conference is noted for its successful achievement of a prohibition on the use of asphyxiating and deleterious gasses and for the prohibition it placed on dum-dum, or hollow point, bullets. In the first meeting of the first sub-commission of Commission I of the 1899 Conference, Swiss delegate Colonel

Künzli placed the idea of outlawing dum-dum bullets on the table, wondering “whether it would not be well to prohibit projectiles which aggravate wounds and increase the sufferings of the wounded.”452 Voicing sentiments that were nearly universal, General den Beer Portugael claimed to “favor the prohibition of inhumane projectiles which produce incurable wounds.”453

The dum-dum bullets, the point of which is very soft, the casing of the projectile being very hard, and the interior being formed of a softer substance, burst in the body; the entrance is thin and the exit enormous. These ravages are not necessary; it is sufficient to render an armed man unable to serve for a time, and it is useless to mutilate him.454

The discussion of dum-dum bullets at the 1899 Conference would most likely have failed to raise a significant problem were it not for the fact that the British military regarded the use of dum-dum bullets as a strategic asset in maintaining control over its

452 Brown (1920, 332). 453 Brown (1920, 332). 454 Brown (1920, 332). 220 colonial empire, particularly in India. According to General John Ardagh, one of the

British delegates at the conference, the use of ordinary bullets were found to be ineffective in the British wars with the indigenous population; as a result, the British army resorted to using dum-dum bullets so as to inflict a shock on the victim that was sufficiently powerful to render them hors de combat. In words that called attention to the standard European distinction between “civilized” and “uncivilized” peoples, Ardagh ardently agreed with the principle that states should not use weapons that inflict unnecessary suffering, but he claimed that

In a civilized war a soldier penetrated by a small projectile is wounded, withdraws to the ambulance, and does not advance any further. It is very different with a savage. Even though pierced two or three times, he does not cease to march forward, does not call upon the hospital attendants, but continues on, and before anyone has time to explain to him that he is flagrantly violating the decisions of the Hague Conferences, he cuts off your head.

It is for this reason that the English delegate demands the liberty to use projectiles of sufficient efficacy against savage populations…455

Aside from the American delegation, this claim was uniformly rejected. Not only did one delegate rebuke Ardagh for making such a blatantly racist distinction between “civilized” and “uncivilized” combatants, but the majority of the delegates present adopted the following formulation of a text prohibiting the use of dum-dum bullets: “The use of bullets which expand or flatten easily in the human body, such as exploding bullets, bullets with hard jackets whose jacket does not entirely cover the core or has incisions in it, should be prohibited.”456 In response to this proposal, Ardagh claimed that

455 Brown (1920, 343). 456 Brown (1920, 286). 221

In the meeting of May 31, an article was accepted by a considerable majority against the use of bullets with a hard jacket whose jacket does not entirely cover the core or has incisions in it.

It seems to me that the use of these words describing technical details of construction will result in making the prohibition a little too general and absolute. It would not seem to admit of the exception which I would desire to provide for, that is, the present or future construction of some projectile with shock sufficient to stop the stricken soldier and put him immediately hors de combat, thus fulfilling the indispensable conditions of warfare without, on the other hand, causing useless suffering.

The completely jacketed bullet of our Lee-Metford rifle is defective in this respect. It has been proven in one of our petty wars in India that a man perforated five times by these bullets was still able to walk a considerable distance to an English hospital to have his wounds dressed. It was proven just recently, after the Battle of Om-Durman, that the large majority of the Dervishes who were able to save themselves by flight had been wounded by small English bullets, whereas the Remington and Martini of the Egyptian army sufficed to disable. It was necessary to find some more efficient means, and to meet this necessity in India, the projectile known under the name of “dum-dum” was made in the arsenal of that name near Calcutta.

In the dum-dum bullet, the jacket leaves a small end of the core uncovered. The result of this modification is to produce a certain extension or convexity of the point and to cause a shock more pronounced than that given by the completely jacketed bullet, but at the same time less effective than that given by the bullet of the Enfield, Snider, or Martini rifles whose caliber is larger. The wounds made by this dum-dum bullet suffice ordinarily to cause a shock which stops an advancing soldier and puts him hors de combat; but their result is by no means designed with the aim of inflicting useless suffering…..

It scarcely seems necessary for me to assert that public opinion in England would never sanction the use of a projectile which would cause useless suffering, and that every class of projectile of this nature is condemned in advance; but we claim the right and we recognize the duty of furnishing our soldiers with a projectile on whose result they may rely—a projectile which will arrest, by its shock, the charge of an enemy and put him hors de combat immediately.457

In response to each of these claims, other delegates not only argued that ordinary bullets are sufficient to render a combatant unfit for battle (and that the use of dum-dum bullets

457 Brown (1920, 276-277). 222 is thereby unnecessary), but that the distinction between “civilized” soldiers and

“savages” is “contrary to the humanitarian spirit which dominates this end of the nineteenth century. It is impermissible to make a distinction between a savage and a civilized enemy; both are men who deserve the same treatment.”458 In the end, the prohibition on the use of dum-dum bullets was rejected by only two states (Great Britain and the United States), and so it went on to form part of the 1899 Hague Convention on the laws and customs of war.

The exchange over the permissibility of using hollow point bullets provides a test for the moral grammar theory of discourse and norms. First off, there was a clear strategic interest on the part of Great Britain to make sure that the prohibition on the dum-dum bullet would ultimately fail. However, the British delegation did not seek to reject the prohibition by claiming that states should be permitted to inflict excessive suffering on the enemy, but rather he sought to defend the idea that dum-dum bullets were not only consistent with this principle but more importantly their use might be thought to be required by the principle. Likewise, the American delegation sought in vain to defend the British in this regard. Commenting on the meeting in his diary, the head delegate of the United States, Andrew Dickson White, claimed that “Sir John

Ardagh of the British delegation repelled earnestly the charges made regarding British bullets in India, and offered to substitute for the original proposal one which certainly would be much more effective in preventing unnecessary suffering and death; but the

Russians seemed glad to score a point against Great Britain, and Sir John’s proposal was voted down, its only support derived from our delegation. Captain Crozier, our military

458 Brown (1920, 343). 223 delegate, took an active part in supporting Sir John Ardagh, but the majority against us was overwhelming.”459 Regardless of whether their claims are factually correct, what is noteworthy about such statements is their self-conscious attempt to show how the use of dum-dum bullets does not cause unnecessary suffering.

Furthermore, in one of his statements to the first commission of the 1899

Conference, General Ardagh claimed that his choice to defend the use of the dum-dum bullet was exceedingly difficult.

I desire to repeat that we are completely in accord with the humanitarian principles proclaimed in the Convention of St. Petersburg, and that we shall endeavor to observe them, not only in their letter, but in their spirit also, in seeking a solution of the problem as to what kind of projectile we shall adopt. I can assure this honorable assembly that it is very disagreeable to me to find myself obliged to vote, for the reasons I have just explained, against a rule inspired by principles of which I wholly approve; and I still cherish the hope that it will be possible to arrive at a unanimous agreement by means of a phraseology which shall leave aside technical details of construction and affirm the principles on which we are all agreed-the principles enunciated in the Convention of St. Petersburg, that is to say, the prohibition of the use of bullets whose effect is to aggravate uselessly the sufferings of men place hors de combat, or to render their death inevitable.460

Given that the prohibition on the use of dum-dum bullets was inspired by a principle that is so engrained in our common ways of thinking about the morality of inflicting harm, i.e. that it is immoral to inflict unnecessary harms on other moral subjects, this passage shows that British support for the dum-dum bullet was not easy. In any case, such public claims did not suffice to generate enough support for the British goal of rejecting the prohibition on dum-dum bullets.

459 White (1905, 319). 460 Brown (1920, 278). 224

The important deliberations on using asphyxiating and deleterious gases in war and the discussions on the use of projectiles from balloons were slightly more successful in producing a consensus than the deliberations over the use of dum-dum bullets. As with the discussion of dum-dum bullets, the deliberations over the use of projectiles from balloons and asphyxiating bombs was highly influenced by basic cognitive schemas we use to evaluate the infliction of harm and suffering on other human beings. In this particular case, the American delegate Colonel Crozier sought to preserve some degree of military flexibility by introducing a motion to restrict the use of such weapons to a period of five years. Generally speaking, the use of projectiles from balloons caused a stir because they were potentially indiscriminate in their effects on soldiers and civilians. In the view of Colonel Crozier, a permanent prohibition on the use of balloon projected bombs would prevent the military from gaining access to a potentially useful tool in war.

Therefore, he argued that although the use of such bombs was indiscriminate at the current point in time, further research and refinement might improve their use to such an extent that they are no longer indiscriminate. To preserve the possibility of using such weapons in future war, the American delegation successfully advocated for a prohibition that would only last [five] years.

Civilian Immunity and the Laws of Naval Warfare at the 1907 Conference

With respect to the laws and customs of war, the Hague Peace Conference of

1907 made no significant advances over the 1899 conference.461 However, there were some important developments concerning the laws and customs of naval warfare—

461 See Best (1994: 41). 225 developments that largely extended the idea of civilian immunity to the context of naval war.462 As a traditional proponent of the idea that non-military vessels at sea should be granted immunity from capture or attack, the United States had attempted to bring the idea of immunity for private property at sea to the attention of the delegates assembled at

The Hague in 1899. On May 23rd 1899, the head of the American delegation, ambassador to Germany Andrew Dickson White, unsuccessfully submitted a memo to

Feodor Martens, the Russian delegate, asking to bring the question of the immunity of private property on the high seas to the attention of the conference. In his diary, White claimed that “after having read the memo,” Martens “insisted that it would be impossible, under any just construction of the Muraviev programme, to bring the subject before the second committee as we had hoped to do; that Russia would feel obliged to oppose its introduction; and that Great Britain, France, and Italy, to say nothing of other powers, would do the same.”463

Firmly pressing his case and attempting to explain that the McKinley administration had instructed by the American delegation to bring up the issue of the immunity of private property on the high seas at the conference, White tried in vain to convince his Russian counterpart to accept his proposal. Recognizing that the chief aim of the conference was to “devise some scheme of arbitration,” White refrained from arguing the case any further, ultimately suggesting that the question should be raised at a later conference,464 a suggestion that was eventually adopted by the 1899 conference.

462 Davis (1975). 463 White (1904, 266). 464 White (1904, 266). 226

Convened in response to a proposal by the Roosevelt administration, the Hague

Peace Conference of 1907 was intended to improve upon the failures of the 1899

Conventions; for our purposes the most significant failure of the 1899 Conventions lies in the fact that they ignored the issue of the immunity of private property on the high seas.

As it relates specifically to the ideas of civilian immunity and restrictions on unnecessary suffering, the 1907 Conference did not make a significant improvement over the achievements of 1899. Save for the important deliberations on extending the laws of land warfare to the domain of naval war, the 1907 Conference is significant because it reaffirmed rather than updated the outcome of the deliberations in 1899. At the 1907

Conference, the American delegation argued strongly for implementing restrictions on the right to capture enemy merchant vessels in the context of naval warfare, and it used a set of arguments that are strongly connected with the varied restrictions on how the civilian population may be treated in times of war. In what one delegate proclaimed was

“an address which will doubtless be considered one of the most remarkable documents emanating from the Conference,” the head of the American delegation, Joseph Hodges

Choate, argued that

The government of the United States of America has instructed its delegates to the present conference to urge upon the nations assembled the adoption of the following proposition: “The private property of all citizens or subjects of the signatory powers with the exception of contraband of war shall be exempt from capture or seizure on the high sea by the armed vessels or by the military forces of any of the said signatory powers. But nothing herein contained shall extend exemption from seizure to vessels and their cargoes which may attempt to enter a port blockaded by the naval forces of any of the said powers.” This proposition involves a principle which has been advocated from the beginning by the government of the United States and urged by it upon other nations and which is most warmly cherished by the American people, and the President is of opinion that whatever may be the apparent specific interest of our own or of any other

227

country for the time being, the principle thus declared is of such permanent and universal importance that no balancing of the chances of probable loss or gain in the immediate future on the part of any nation, should be permitted to outweigh the considerations of common benefit to civilization which call for the adoption of such an agreement.465

In a wide-ranging speech that touched on the history of US policy toward the immunity of private property on the high seas, Choate argued that a prohibition on the right to capture enemy merchant ships in war would not only serve to promote international commerce, and in that sense it would serve the economic interests of all states, but that such a prohibition was consistent with universal principles of justice.

On behalf of the United States of America we make this appeal to our sister nations to give their assent to our humane and pacific proposition, which we for more than a century have sought to bring about.

First on humanitarian grounds. The capture of enemy’s private property at sea, belonging to unoffending non-combatants who are pursuing international trade, not for their own benefit alone but for the common benefit of the world, is the last remaining element of ancient piracy. To despoil innocent and unoffending merchants, who are taking no part in the war, of their ships and goods contained in them, or to destroy them if the convenience of the captors requires, savors of the savagery of ancient war. It ought no longer to be tolerated by civilized nations. And as it is generally accompanied by holding under the most unwholesome conditions the crews of the captured ships, this greatly adds to the cruelty and barbarity of the proceeding. As matters now stand the damage to the individual owners far outweighs any possible benefit to the belligerent state.466

Furthermore, the American delegate, along with representatives from other states who spoke after him, claimed that it would be nonsensical to prohibit the intentional destruction of civilian property in the context of land warfare whilst granting military vessels the right to seize and capture enemy merchant ships.

465 Brown (1920, 752). 466 Brown (1920, 762). 228

As it relates to the idea of civilian immunity, there are two things that need to be kept in mind regarding the arguments set forth by the American delegation at the 1907

Conference. First off, although his arguments are expressed in the strongest terms possible, Choate was not arguing that humanitarian considerations always outlaw the use of force against unoffending merchant ships; rather, in cases of necessity or in an attempt to break through a blockade a merchant ship may be captured at sea. Given the account of moral discourse set forth in Chapter 2, these claims are just what we should expect: it is only unnecessary and intentional attacks on non-combatants that are outlawed by international law. Earlier on Choate proclaimed that

There is no reason for the immunity of private property upon land from wanton plunder and destruction which does not equally apply to similar property upon the sea. We do not ignore or in any way seek to evade the rules of military law by which private property upon land may be occupied and held for legitimate military purposes, such as making requisition for the support of armies or for levying taxes, or with a view to ultimate annexation by the victor, of which the unrestricted right of commercial blockade is a fair equivalent on the sea.

But leaving aside all that part of military law which is undisputed, because it has no bearing upon the present question, we submit that there is a perfect analogy between the exemption of private property on land not needed for military purposes, from spoliation and destruction which is now established for centuries by the usage of nations and a similar exemption which we claim for private property on the sea, not needed for military purposes.

We do not deny that a private house and its contents, which stood in the way of a hostile advancing army, in its efforts to reach and attack the other belligerent, might properly be swept away and be entitled to no exemption. But nothing can be better settled, than that apart from the military necessities already referred to, for the commander of an army to send out forces for the purpose of robbing private houses of their contents, and destroying the residences of unoffending non-combatants, would be a gross violation of every principle of justice and good morals, and of the existing laws of war, and to this extent in the same way the wanton spoliation of non-combatant ships and cargoes not needed for military purposes, for the mere purpose of enriching the captors, or their governments, or of terrorizing the unfortunate owners and their governments and coercing them to

229

submit to the will of the triumphant belligerent, and to accept his terms, is abhorrent to every principle of justice and of right, and ought to be remitted to the same category of condemnation in which similar outrages upon non-combatants on land are now universally included467

As the Principles of the Harmful Action Model would lead us to expect, Choate did not attempt to justify the American proposal by claiming that merchant ships have absolute immunity on the high-seas, but only that they are immune from deliberate attacks or, in his words, “wanton spoliation.” Capturing or otherwise attacking a ship on pain of military necessity or in a way that is not deliberate is said to be permissible, at least by the lights of the American delegation.

Although these arguments were not sufficient to gain enough support for the

American proposal, the remarks by the delegates at the proceedings indicate that they were not only convincing to some delegates but that they put the critics of the American side on the defensive. For instance, the British and the French tried to criticize the

American proposal by claiming that it would ultimately raise a problem for the practice of implementing naval blockades and that as a result it would it would take away an important tool of coercion that is relatively peaceful in nature. Furthermore, they claimed that the capture of private property on the high seas was not nearly as gruesome as the intentional pillaging of towns and villages since it “did not necessarily involve killing or wounding anyone.”468 Hence, while the Americans failed to successfully convince their opponents, the evidence suggests that the basic precepts of the Harmful Action schema were adopted by nearly everyone.

467 Brown (1920, 759). 468 Davis (1975, 229). 230

*****

Although the empirical analysis of the 1899 and 1907 Hague Peace Conferences presented above is admittedly less extensive than the actual range of the deliberations that took place, it allows us to make the following points about the use of moral discourse in designing the positive rules of international humanitarian law: (1) regardless of their strategic interests, actors tend to justify their preferred policy proposals by reference to universally valid moral considerations; (2) with respect to the constraints on how the civilian population may be treated, the delegates at the 1899 and 1907 conferences tended to invoke the ideas of responsibility, intentionality, and necessity; and (3) they tended to place a high moral valence on actions that were intentional rather than unintentional.

These considerations provide support for the account of moral discourse and international norms that I defend in this dissertation.

Yet, even a brief perusal of the documentary evidence on the Hague Peace

Conferences indicates that in spite of the similarities that exist between contemporary

IHL and the admittedly underdeveloped legal norms that emerged out of the 1899 and

1907 conferences, there is a major gulf that separates the contemporary laws of war from those that existed in the late 19th and early 20th centuries. The Geneva Conventions of

1949 and their two Additional Protocols of 1977 are far more advanced than the Hague

Conventions. Nevertheless, their advances consist chiefly in the fact that they apply to a much wider range of issues and conflicts, and for the most part they do not represent any advancement in terms of their normative content. They still aim to protect the innocent and the weak from the arbitrariness of military violence, and so in that sense they were

231 intended to achieve some of the selfsame objectives as the Hague Conventions. In the following section, I evaluate the moral grammar theory of discourse and norms by analyzing the Geneva Conventions of 1949 and the Additional Protocols of 1977.

The Geneva Conventions and the Additional Protocols

As paradoxical as it may seem, World War II unleashed both the worst and the best elements of human nature. Indeed, the violence of World War II was so despicable that it strained the conceptual categories we typically use to describe such acts of ferocity. The use of aggressive force and the intent to destroy the entire Jewish population in Europe led those who were charged with the responsibility to try war criminals to develop a new legal category, crimes against humanity, to help bring charges against Nazi war criminals. Yet, although World War II and the Holocaust should be regarded as moral low points in the grand sweep of human history, they also created a great sense of urgent responsibility in their wake. In order to ensure that the rights of man do not evaporate when the fog of war descends on earth, the creation of a new legal framework was in order. As Charles Double, President of the Council of State of the

Republic and Canton of Geneva, remarked “the appalling catastrophe which convulsed the world for years showed clearly, on the one hand, how dreadful are the ravages of war, but on the other, how spontaneous and generous the response [to] the suffering of others can be.”469

The creation of the United Nations was without question the crowning achievement of the new international legal framework that arose on the ashes of World

469 Final Records, Volume 2-A, page 11. 232

War II. Yet the Geneva Conventions of 1949 represent another important milestone in the development of modern international law. In response to the horrific crimes of World

War II, the Geneva Conventions were designed to strengthen and update the law and customs of war and to rectify the more evident failings of previously existing law. World

War II revealed inadequacies in existing safeguards for POWs and the wounded and shipwrecked at sea. For our purposes, however, the Geneva Conventions are important because they represent the first successful attempt to codify protections for civilian persons in the canon of public international law. As diplomatic historian Geoffrey Best points out, after World War I, a “novel convention was in preparation for the protection of civilians in occupied territory, a category of war-victim which that same war had highlighted, but the Second World War broke out before it could be enacted.”470 One of the greatest achievements of the diplomatic conference that produced the Geneva

Conventions, therefore, was the fourth convention on the protection of civilians in warfare. Although the conventions on prisoners of war and the wounded and shipwrecked at sea are certainly interesting and important, for the sake of brevity and simplicity in what follows I focus my attention on the deliberations that led to the convention on the protection of civilians persons. Keeping the extensiveness of the

Geneva Conventions clearly in mind, I consider how the use of moral arguments on civilian immunity and unnecessary suffering shaped two important debates: (1) the debates over general principles and standards for protecting the civilian population in times of armed conflict and (2) the debate over extending the laws of war to non- international armed conflicts.

470 Best (1994, 54). 233

While the duty to protect civilians in the context of armed conflict seems so well- entrenched as to be regarded as a moral truism, the fourth convention on the protection of civilian persons was just as intensely political as any international treaty. Indeed, the

Geneva Conventions were signed and ratified in the early stages of the Cold War, and the archival evidence indicates that states were intensely concern about how they would affect the relations between the superpowers.471 Hence, one might expect a realist or a rational choice approach to the 1949 Conventions, not to mention the 1977 Additional

Protocols, to be entirely adequate. With the aid of hindsight, we now know that a war between the superpowers did not transpire, but at the time states had no reason to believe that such a war was beyond the realm of possibility, and the more frantic members of the public believed that such a war was well-nigh inevitable. Thus, we would expect states, particularly the superpowers, to design laws of war in ways that would not unduly tie their hands, or in ways that would allow them to achieve their strategic objectives. The

Cold War rivalry, it seems, should have induced states to be more strategic and self- interested in designing the laws of war.

Although power and interests were important factors in the development of the

Geneva Conventions and the Additional Protocols, they do not fully explain the design of these important legal restraints on armed conflict. Contrary to the expectations of realism, the major debates between the great powers at the Geneva Conventions were not even intended to secure the power-political interests of the US and the Soviet Union and their respective alliances. Instead, they were primarily intended to gain what might be called “symbolic” leverage over the adversary. The Soviet Union and the United States

471 Best (1994). 234 both sought to present themselves to the international community as committed humanitarians, determined to protect human rights. Consistent with the account of moral discourse that I defend in this dissertation, the moral debates between the US and the

Soviet Union were typically underwritten by shared precepts, and it seems that they attempted to gain material and symbolic leverage over each other by using the kinds of principles I have outlined in the Harmful Action Model in Chapter 2. To demonstrate these claims, below I analyze the US and Soviet debate over some of the general principles of the Geneva Convention on the Protection of Civilian Persons.

In addition, I argue that a strict focus on strategic preferences does not enable us to account for the discursive evidence, nor does it help explain the design of international humanitarian law. Regardless of whether states were trying to design the laws of war so as to gain material or symbolic leverage over their adversaries, they routinely used arguments and claims that implicitly rely upon the moral rules of the Harmful Action

Model. Since these rules cannot be directly “read off” of state’s strategic interests, an account of the cognitive origins of moral discourse is necessary for explaining where these ideas come from. This implies that even if moral arguments are used strategically, the account of moral discourse that I defend here still tells us something important about the content of the laws of war in international society. In what follows, I begin by briefly characterizing the negotiations that led to the Geneva Conventions of 1949 and in the following sub-section I discuss the Additional Protocols of 1977.

The Geneva Conventions of 1949

235

While international law is technically based upon the treaties and customary rules of sovereign states, the International Committee of the Red Cross was the primary actor involved in the creation of the Geneva Conventions and the Additional Protocols.

Formed in the late 19th century by businessman-turned-humanitarian, Henry Dunant, the

ICRC had been seeking to revise the 10th Hague Convention of 1907 (for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 1906) and the Geneva

Convention of 1929 on the Relief of Wounded and Sick Armies in the Field and the

Treatment of Prisoners of War for some time. In a letter to the foreign ministers of state stressing the need to revise the Geneva Conventions and to create a new convention on the protection of civilians in war, the Swiss Federal Political Department claimed that

The revision of the Geneva Conventions and of the 10th Hague Convention, together with the preparation of a convention for the protection of civilian persons in time of war, should have been undertaken by a diplomatic conference which was to have been held early in 1940. This conference never met. The Second World War, however, proved that it was essential to improve and complete the Conventions now in force, and to extend their application so as to include civilians. This is the aim which all states which are parties to the Geneva Conventions will no doubt wish to achieve.472

After a spate of preparatory work and diplomatic maneuvering, the conference on the

Geneva Conventions was held in Geneva, Switzerland in the spring and summer of 1949.

In a span of four months, the delegates at the conference crafted what are now regarded as among the most significant international conventions in the modern world. Roughly twenty years later, an even more expansive number of actors met once again in Geneva over a four year span to “reaffirm and develop” the Geneva Conventions by fashioning two additional protocols, one that applied strictly to international armed conflicts and the

472 Final Records, page 148. 236 other that applied strictly to non-international armed conflicts.

Although the Geneva Conventions are decidedly apolitical in the sense that they were not designed to solve any outstanding political conflict in the international system, there is a distinct sense in which they were objects of the political divisions of mid-20th century history. Emerging right near the beginning of the Cold War, it is difficult to overlook the role of the Cold War rivalry in the deliberations at Geneva in 1949. In the debate over the failed Soviet resolution to outlaw the use of nuclear weapons, for instance, the opponents were all curiously allies of the United States, a fact that cannot be easily dismissed as coincidental. These considerations show that the terms of international justice and the moral arguments that states use in international negotiations are not separate from the struggle for power in the international system. Yet, even though the negotiators who crafted the Geneva Conventions were motivated in part by power and interests, the documentary evidence clearly indicates that used moral principles to gain material and symbolic leverage and to justify their strategic claims.

The 1949 Geneva Conventions are composed of four distinct treaties, each of which is constituted by well over one hundred articles, some of which are unique to each treaty and some of which are expressed in common in each of the four conventions.

Given the sheer extent of the Geneva Conventions and the complexity of the diplomatic conference surrounding them, in this chapter I strove for breadth of analysis and political significance, focusing solely on the Geneva Convention with Respect to the Protection of

Civilian Persons in Times of War. To gain breadth of analysis, I analyzed the debates

237 over the general protections extended to protected persons473 in Part III, Section I of the fourth Geneva Convention that came out of the Stockholm conference in 1948 prior to the diplomatic conference in 1949.

The common provisions of Part III, Section I were designed to provide common standards for the treatment of individuals in the territory of a party to a conflict and individuals in occupied lands, and as such the debates over these provisions should provide us with an excellent sample of the types of moral arguments and considerations that the delegates used in the conference as a whole. To show how moral arguments intersected with political interests and considerations, I analyzed the debate over extending the Geneva Conventions to non-international armed conflicts, a debate that

Geoffrey Best regards as “one of the liveliest sub-plots of the Geneva drama of 1945.”474

In his view, “at no point was the ‘humanitarian’ approach more at odds with that of the

‘realist’ than with reference to internal wars.”475 The delegates at the Geneva Conference specifically chose to ignore the Hague law on the means and methods of warfare, and as a result deliberations did not significantly broach the issue of imposing restrictions on unnecessary suffering. For that reason I limit my analysis of the 1949 Geneva

Convention on protecting civilian persons to the idea of civilian immunity.

The Status and Treatment of Civilians in the Fourth Geneva Convention

473 According to Article 3 of the Draft Convention, protected persons in the sense relevant for the fourth Geneva Convention “are those who, at a given moment and in whatever manner, find themselves, in the case of a conflict or occupation, in the hands of a power of which they are not nationals; of the country where the conflict takes place and who are not covered by other international conventions, are likewise protected by the present convention.” 474 Best (1994, 168). 475 Best (1994, 168). 238

The idea of protecting individual civilians forms the pinnacle of the Fourth

Geneva Convention, not to mention the Geneva Conventions as a whole.476 While composed of roughly 160 articles, many of the articles in Geneva Convention IV are highly specific in nature, intended to regulate very precise behaviors ranging from the proper medical treatment of pregnant mothers to the appropriate military and judicial safeguards for regulating occupied territories. Relating as they do to the minutiae of international legal regulations, I omit discussion of the more specific provisions of the

Geneva Conventions. Yet, Geneva Convention IV stipulates a number of general provisions that are designed to regulate the behavior of states during times of armed conflict or military occupation, and one might argue that such provisions form the normative core of the entire convention.

Flowing throughout the convention is a general acceptance of the idea that even though protected persons who take no part in armed hostilities may be exposed to the dangers of military operations, they shall at all times be protected against arbitrary attacks on their personal dignity and livelihood.477 This idea is most clearly expressed in

Article 27, 32, 33, and 53 which are each contained in Part III, Section I of Geneva

Convention IV, which is devoted to specifying general provisions for the treatment of protected persons in the territory of a party to the conflict or in an occupied country. In the Appendix to this dissertation, I include tables providing a statement of the draft articles proposed at the Stockholm conference in 1948 and a statement of the articles that were eventually adopted by the diplomatic conference in Geneva in 1949.

476 According to Article 4 of Geneva Convention IV, protected persons are those who are “in the hands of” a party to a conflict or those who reside in occupied territory. 477 Pictet, Commentary on Geneva Conventions, (1958, 10). 239

An analysis of the deliberations over the draft articles and proposed amendments clearly shows that the delegates at the diplomatic conference were interested in prohibiting the intentional infliction of physical and mental harm, including the infliction of death, upon civilian persons. As Principle #1 of the Harmful Action Model above would lead us to expect, the ideas of intentionality and responsibility were at the center of their thinking with respect to the idea of civilian immunity. Not only did the delegates attempt to impose a categorical prohibition on the intentional infliction of harm against protected persons, with the exception of situations of military necessity, but furthermore they sought to outlaw the use of reprisals on civilians, deviating substantially from a generally accepted way of executing international law—a claim that is difficult to square with rationalism. As Jean Pictet notes in his commentary on the Geneva Conventions, the goal of preventing the use of reprisals with respect to civilian persons stems largely from the idea that they bear no responsibility for the relevant breach of international law:

“reprisals [constitute] a collective penalty bearing on those who least [deserve] it.”478

In the debates over each of the draft articles and amendments presented in the

Appendices below, the delegates repeatedly emphasized the importance of protecting civilian persons and they made frequent references to their recent experiences during

World War II. Incorporating as it did “the spirit which imbues the whole convention,”479

Article 25 (eventually Article 27 in the Final Act), which held that “protected persons are entitled, in all circumstances, to respect for their persons and honor” and “shall at all times be humanely treated and protected, particularly against acts of violence,” was

478 Pictet, Commentary on Geneva Conventions, (1958, 228). 479 Pictet, Commentary on Geneva Conventions (1958, 200). 240 adopted with very little debate. In fact, it was adopted unanimously, by a vote of 42 to 0, with 1 abstention.480 In addition, the willful infliction of extreme physical or mental suffering in addition to the intentional killing of protected persons is regarded as a “grave breach” of the Geneva Conventions, and the article on the definition of grave breaches was adopted with very little debate at the diplomatic conference.

Consistent with the Harmful Action Model, the Geneva Conventions do not prohibit actions that accidentally cause harm or suffering to protected persons so long as such actions are justified by a legitimate military interest. However, as the number of amendments to article 29A (eventually Article 32 of the Final Act) indicate, the debates over this article were much more politically contentious, setting the members of the

Soviet bloc against those of the West. Article 29A had two different versions, one presented by the US and the other presented by the Soviets, and it was designed to prevent states from exterminating protected persons “in their hands,”—an article that was clearly influenced by the Nazi treatment of occupied peoples during World War II.

The US and Soviet Debate over Article 29A

The US and Soviet debate over Article 29A concerned the following issues.

Although the precise motives behind the Soviet proposal are not entirely clear, enshrouded as they are behind a mask of legalistic terminology, the proposal was consistent with the general approach of the Soviet Union to the Geneva Conventions. At several turns in the deliberations, the Soviet Union had taken what must have been a deliberate effort to gain the moral high ground by endorsing many of the more idealistic

480 Final Records, volume 2-B, page 473. 241 provisions of Stockholm draft of the Geneva Conventions, which were drawn up in a pre- conference meeting in 1948.481 As any student of international relations might expect, the debate teams over the provisions of the Geneva Conventions typically fell into two major categories: those states allied with the Soviet Union and those states allied with the

West, particularly the United States. Given its rocky relationship with the ICRC (it accused the international humanitarian organization of being “soft on fascism” for its policies during World War II),482 the Soviet Union had not participated in any of the preparatory conferences leading up to the diplomatic conference in 1949. Consequently, its decision to show up in Geneva provoked some surprise. The general strategy that it seems to have followed was one in which it tried to make itself appear to be a dedicated humanitarian by simultaneously endorsing overly idealistic proposals and by exposing the moral failures of the West.483

The major concern on the part of the West had to do with the claim in the Soviet version of 29A to prohibit and to consider as a serious crime all means of exterminating the civilian population. On the June 15th meeting of Committee III, the American delegation claimed that “the proposal to consider as a ‘serious crime’ ‘all means of exterminating the civilian population’ called for serious consideration—and rejection. To begin with, the word ‘extermination’ was so vague (and the discussion in the drafting committee had revealed that the expression was deliberately left vague) that it could be interpreted as prohibiting methods of warfare long sanctioned by international law. The

United States could not accept such a drastic revision of the rules of war—however

481 Best (1994, 110). 482 Best (1994, 84). 483 Best (1994, 110). 242 cleverly advanced as a humanitarian proposal.”484 Although the center of concern was not clearly stated by the American delegate, the evidence suggests that the concern amongst the United States and its British allies had to do with maintaining legal support for the use of militarily useful weapons that evidently have the potential of killing large numbers of civilians. In a cable to the British representative at Geneva, UK official Sir

David Roseway claimed that “clearly nothing must be included…which would restrict freedom to carry out operations, particularly bombing.”485

On more than one occasion, the American delegate made a strenuous effort to make sure that the Geneva Conventions did not make any new restrictions on the means and methods of war. After all, the Geneva conference was tasked with updating the law of Geneva, which is traditionally centered on providing protection for the victims of armed conflict rather than on restricting the means and methods of warfare. This is the sphere of the Hague Conventions. Such concerns would surface again when the conference considered the Soviet draft resolution declaring that the use of weapons of mass extermination, including but not limited to nuclear warheads, was “incompatible with the elementary principles of International Law and the conscience of peoples.”486

Indeed, an Australian delegate, Colonel Hodgson, made this connection between the

Soviet version of article 29A and its failed attempt to introduce a resolution critical of using nuclear weapons. In an address to the 34th plenary meeting of the conference,

Colonel Hodgson claimed that the Soviet proposal in Article 29A was intended to

484 Final Records, volume 2-A, page 716. 485 Quoted in Best (1994, 111). 486 Final Records, volume 3, page 181. 243 implicitly prohibit the use of “certain classes of weapons.”487

That amendment was decisively defeated and then we saw for the first time this resolution [i.e. the Soviet resolution on nuclear weapons], which made the objective clear, presented in the form of a resolution to the Third Committee.488

The indirect objective of the Soviet version of article 29A was to prohibit the use of certain means of exterminating the civilian population, a prospect that would not only limit the means of legitimate military violence in the future but would also be particularly embarrassing for the United States as it had used nuclear weapons at the end of World

War II.

One might think that the rejection of the Soviet proposal on the part of the US and its allies would pose a problem for the argument set forth in this dissertation project, seeming as it does to sanction the use of means that will lead to the extermination of the civilian population. However, in response to the Soviet proposal, the Americans sought to gain support for a proposal that would prohibit all actions intended to exterminate the civilian population. The American proposal was not intended to prohibit all means of exterminating the civilian population, but rather it was only intended to prohibit states

“from taking any measure which has as the object the physical suffering or extermination of protected persons in its power.”489 While the distinction between this proposal and the one put forth by the Soviets is seemingly minimal, it has the implication of allowing states to use certain tactics and weapons just in case they are not explicitly intended as a means of exterminating protected persons. It leaves open the possibility of using weapons that incidentally lead to civilian deaths.

487 Final Records, volume 2-B, page 497. 488 Final Records, volume 2-B, page 497. 489 See Appendix A below. 244

Although the main drift of the American proposal was adopted by the Geneva

Conference, there was one important change made to the final draft of the article—a change motivated in part to quell the concerns of the opponents of the American version.

Near the end of the discussions on the proposal put forth by the Drafting Committee on

Article 29A, the Belgian delegate claimed that instead of using the phrase “that each

[state] is prohibited from taking any measure aiming at” the destruction of protected persons, the article should include the phrase “that each [state] is prohibited from taking any measure of such a character as to cause” the physical destruction of protected persons. Since it is extremely difficult to determine the mental state of potential war criminals, the goal of introducing this particular wording was to reduce the possibility that a military commander might defend himself by claiming that he had not acted with the intent to exterminate certain protected persons. While this may seem to conflict with the claim that people tend to place a higher moral valence on physical and mental harms that are intentionally inflicted, it was merely designed to make sure that “criminals [will] have no defense based on their alleged intentions.”490 It was designed chiefly to prevent states from plausibly denying any intent to kill civilians.

Article 3 Common to the Geneva Conventions

In his commentary on the Geneva Conventions, the eminent legal scholar and former director of the ICRC, Jean Pictet, claims that Article 3 common to all four Geneva

Conventions signaled “a new step forward in the unceasing development of the idea on

490 Final Records, volume 2-B, page 719. 245 which the Red Cross is based.491

Born on the battlefield, the Red Cross called into being the first Geneva Convention to protect wounded and sick military personnel. Extending its solicitude little by little to other categories of war victims, in logical application of its fundamental principle, it pointed the way, first to the revision of the original Convention [i.e. the Geneva Convention of 1864], and then to the extension of legal protection in turn to prisoners of war and civilians. The same logical process could not fail to lead the idea of applying the principle to all cases of armed conflict, including internal ones.492

Although Pictet suggests that the connection between international and internal conflicts is of minor significance, and that the sheer power of logic will inevitably bring about the application of the law of Geneva to non-international armed conflicts, many of the delegates at the Diplomatic Conference in Geneva did not share this way of thinking. In fact, given the traditional concerns about state sovereignty emphasized by realists, the deliberations over applying the strictures of the Geneva Conventions to internal wars provoked a significant degree of concern. Always the champion of the rights of persons, the International Committee of the Red Cross had initially sought to gain support for a draft article that would make the entire Geneva Conventions applicable to non- international armed conflicts, and it was this article that made it into the draft text of the conventions that came out of the 1948 Stockholm conference. Interestingly enough, the

ICRC knew that such a massive reformulation of the relationship between sovereigns and their subjects, at least in the terms of international law, would never gain enough support from states, even amongst those who were favorable to the idea of universal human rights.493 Nevertheless, they shot high knowing that their efforts would eventually have

491 Pictet, Commentary on Geneva Conventions, (1958, 26). 492 Pictet, Commentary on Geneva Conventions, (1958, 26). 493 Pictet, Commentary on the Geneva Conventions (1958, 29-30). 246 to be tailored to meet the interests of states.

At the Diplomatic Conference, the most obvious source of disagreement centered on the question of whether applying the Geneva Conventions to internal armed conflicts would pose a threat to the sovereignty of the state. Applying the Geneva Conventions to regulate the relationship between sovereign states and their citizens would not only change the traditional relationship between international law and domestic politics, but in addition it was feared by some delegates that it would confer some degree of legitimacy on the activities of insurgents, who were technically in breach of domestic law. A central concern here was that the application of the Geneva Conventions to internal wars would effectively turn rebels and insurgents into “prisoners of war” upon capture, a status that entails all of the benefits accorded to prisoners of war in international law. As the delegate from Greece noted, the application of the Geneva Conventions to non- international armed conflicts “would entail the application to [insurgents] of the provisions of Articles 74 and 100 of the Prisoners of War Convention.”494 As a result,

“the rebels could not, therefore, be charged with crimes against common law committed before their arrest, and they would be automatically granted a pardon at the end of the

494 Final Records, page 10. Draft Article 74 states that “Prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall enjoy, even if convicted, the benefits of the present Convention.” Draft Article 100 states that “Subject to the provisions of paragraph 3, belligerents are bound to send back to their own country, regardless of number or rank, seriously sick and seriously injured prisoners of war, after having brought them to a condition where they can be transported, in conformity with paragraph I of the following Article. Throughout the duration of hostilities, belligerents shall endeavour, with the co-operation of the neutral Powers concerned, to make arrangements for the accommodation in neutral countries of the sick and wounded prisoners of war designated in paragraph 2 of the following Article. They may, in addition, conclude agreements with a view to the direct repatriation or internment in a neutral country of able-bodied prisoners of war who have undergone a long period of captivity. No sick or injured prisoner of war who is eligible for repatriation under paragraph I may be repatriated against his will during hostilities.” 247 disturbances.495 The arguments against extending the Geneva Conventions to the domain of internal conflicts were given their most powerful support by the representative from

Burma, General Oung. In his view, the application of the Geneva Conventions to internal armed conflicts would actually create incentives for common criminals to increase their attacks upon the state since they could expect to be protected by the various provisions of the Geneva Conventions. In his view, there had been no serious attempt at the diplomatic conference to define the phrase “armed conflicts not of an international character.”

…. no attempt has been made to define this phrase. To go further, the phrase may include banditry, uprisings, disorders, rebellion and civil war. By not defining it, all the above degrees of armed conflict fall within the Article that you are now asked to adopt. Even the lesser forms are discarded, rebellion and civil war are by themselves most undesirable inclusions in the Conventions. They may easily be the work of paid mercenaries and “Quislings” acting for their own gain and at the expense of the civilians on behalf of foreign ideologies…..So the only help that the Article will give, if you adopt it, will be to those who desire loot, pillage, political power by undemocratic means, or those foreign ideologies seeking their own advancement by inciting the population of another country. If you agree that this will be the result, we are sure you will not adopt this Article, especially if you will realize that no government of an independent country can, or will ever, be cruel or inhuman in its actions toward its own nationals.496

In response to concerns such as these, the conference composed a special committee to review the draft article in the Stockholm text and a variety of proposals.497

The outcome of the deliberations in the special committee was a text that sought to apply the basic principles behind the Geneva Conventions to non-international armed conflicts while refraining from applying the conventions as a whole. The text that was eventually adopted in a plenary meeting of the conference by a vote of 34 to 12 with 1 abstention reads as follows:

495 Final Records, page 10. 496 Final Records, page 329. 497 For a review, see Pictet’s Commentary on the Geneva Conventions, (1958, 32). 248

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1): Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion, faith, sex, birth, or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2): The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavor to bring into force, by means of special agreements, all or part of the other provisions of the present convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

The last clause was particularly important for quelling the concerns of those who argued that the application of the Conventions to internal wars would prevent states from prosecuting common criminals. Nevertheless, the most die-hard critics of this particular article (e.g. the representative from Burma) still had a problem with applying any aspect of the conventions to internal armed conflict. In an attempt to provide normative support for his position, the Burmese representative actually argued that applying any international legal strictures to the domain of civil conflict would actually endanger rather than protect the lives of civilians since it would effectively induce rebels to take up arms against the state. Furthermore, he argued that “each government of an independent

249 state can be reasonably expected to treat its own nationals with due humanity, and there is no reasons to make special provisions for the treatment of persons who had taken part in risings against the national government as distinct from the treatment of other offenders against the laws of the state.”498

To an audience that had recently experienced the horrors of World War II, entailing as they did the intended annihilation of the Jewish population in areas controlled by Nazi Germany, such arguments had little resonance. In response to these concerns, the representative of Switzerland posed the following rhetorical questions:

As soon as an armed conflict is in process, Article 2A499 requires the legitimate government to certain humanitarian principles, the violation of which would make it forfeit the respect of the public opinion of the world. Are we prepared to admit that a legitimate government, faced by a rebellion involving a certain degree of organization, should have the right to act with cruelty towards the opposing party or to ill-treat or torture some of its members? Is it intended that it should have the right to inflict humiliating or degrading treatment or to disregard the legal safeguards generally regarded as essential throughout the civilized world, and so acting to place itself beyond the ban of civilized opinion? Do we wish to authorize it or refuse to search and care for the enemy sick and wounded? I feel sure that we should be unanimous in answering no.500

Though the support for the article was certainly not unanimous, it was powerful enough to gain an overwhelming majority for an article that was designed to apply minimal standards of humane treatment to the domain of non-international armed conflicts.

Though the individual reasons that states had for adopting such a politically contentious proposal are beyond our grasp, the frequent reference to basic moral principles in the debates suggest that normative considerations were foremost in the

498 Final Records, volume 2-B, page 330. 499 This was the title given to the accepted draft article that would eventually come to be Article 3 common to the Geneva Conventions. 500 Final Records, volume 2-B, page 335. 250 minds of the delegates, at least with respect to their public declarations. Prior to the diplomatic conference there had been significant concerns expressed by the imperial powers of the West, particularly Britain and France.501 The concern had to do with the fact that any convention designed to apply to non-international armed conflicts would necessarily apply to colonial wars that were now brewing to the surface in places such as

Malaysia and Indo-China. Fearing that opposition to the Stockholm text (i.e. the one that sought to apply the conventions as a whole to the domain of internal armed conflict) would make them look bad, especially in light of the fact that the Soviet bloc countries were “advocating the application of the Conventions to civil war,”502 the imperial powers, the French in particular, sought to find a solution that preserved the normative benefits of a rule that protected human rights while minimizing the costs to state sovereignty. The

French were responsible for introducing the proposal that sought to limit the applicability of the Geneva Conventions to internal armed conflicts by simply requiring that the parties to a conflict respect a minimal set of humanitarian principles.503 Although the French proposal represented a concession to state sovereignty, it did also recognize the importance of upholding universal principles of justice, however minimal, in internal disputes.

The 1977 Additional Protocols to the Geneva Conventions

The main impetus for reaffirming and updating the Geneva Conventions had to do with the difficulty of applying them to a world that had grown more complex since 1949.

501 Best (1994, 173-174). 502 Best (1994, 173). 503 Best (1994, 174). 251

Not only had the Hague laws regulating the means and methods of warfare “not undergone any significant revision since 1907,”504 but the political world of 1974-1977 was substantially different from that of 1949. By the mid-1970s, the world had experienced two major conflicts that resulted from the Cold War rivalry, i.e. the Korean

War and the Vietnam War, and in addition it had experienced a slew of revolutionary and national liberation movements in several Third World countries. With respect to international humanitarian law, these were major developments indeed. As Francois

Bugnion notes, “the majority of armed conflicts in the years after 1949 [were] non- international armed conflicts—in other words, civil wars.”

The only part of the four Geneva Conventions which specifically applied to such situations was the common Article 3. Although it had been intended as a minimum set of essential humanitarian principles, to be supplemented by more elaborate rules adopted by special agreement between belligerents, all too often this article was the only body of rules which warring parties would accept. In such conditions, only a very basic level of protection could be guaranteed to war victims.

In addition, under the Geneva Conventions, the wars by means of which indigenous peoples sought to gain their freedom from colonial rule were considered to be non-international armed conflicts since, under the public international law then in force, a colonial territory was not regarded as distinct from the territory of the colonial power. This classification was rejected by the developing countries, which had not taken part in the 1949 diplomatic conference and resented being bound be rules in whose drafting they had had no say. These countries therefore requested a revision of the Geneva Conventions to take greater account of their circumstances and legitimate requirements.505

The Additional Protocols to the Geneva Conventions were therefore designed in order to extend greater protection to the victims of armed conflict by updating IHL to take account of important developments in the means and methods of warfare insofar as they

504 Sandoz et al., ICRC Commentary on the Additional Protocols, (1987, xix). 505 Bugnion (2000, 44). 252 produce unnecessary suffering and to take account of the distinct problems raised by national liberation struggles and guerilla warfare in the context of international and non- international armed conflicts.

In line with my focus on legal norms that protect the civilian population and that seek to reduce the infliction of unnecessary suffering, for this section I analyzed the debates over the rule of proportionality at the 1974-1977 conferences on the Additional

Protocols to the Geneva Conventions. The idea of protecting individual civilians forms the pinnacle of the entire international humanitarian regime, and it was frequently voiced in the negotiations that led to the adoption of the 1977 Additional Protocols to the

Geneva Conventions. Every state and non-state actor that participated in the diplomatic conferences over the Additional Protocols believed, or at least they claimed to believe, that civilians should always be granted special protections and immunity in the context of modern warfare.

Nevertheless, a close analysis of the conference proceedings suggests that the debates over civilian immunity were not entirely divorced from political considerations.

More specifically, in the debates over the rule of proportionality, a significant fault line emerged between the representatives of powerful Western states and the representatives of substantially less powerful Third World countries. Whereas the members of powerful states defended the idea of applying the rule of proportionality to the domain of violent conflict, the members of weak states argued that this rule should not be applied to the domain of violent conflict and that civilians should enjoy absolute immunity. The rule of proportionality was stated in two of the draft articles for the first Additional Protocol to

253 the Geneva Convention:

Draft Article 46:

a. (1) The civilian population as such, as well as individual civilians, shall not be made the object of attack. In particular, methods intended to spread terror among the civilian population are prohibited.

b. (2) Civilians shall enjoy the protection afforded by this article unless and for such a time they take a direct part in hostilities.

c. The employment of means of combat and any methods which strike or affect indiscriminately the civilian population and combatants, or civilian objects and military objectives, are prohibited. In particular, it is forbidden:…

i. To launch attacks which may be expected to entail incidental losses among the civilian population and cause the destruction of civilian objects to an extent disproportionate to the direct and substantial military advantage anticipated.

Draft Article 50:

a. Constant care shall be taken, when conducting military operations, to spare the civilian population and civilian objects. In planning, deciding, or launching of an attack, the following precautions should be taken:….

b. Those who launch an attack shall, if possible, cancel or suspend it if it becomes apparent that the objective is not a military one or that incidental losses in civilian lives and damage to civilian objects would be disproportionate to the direct and substantial advantage anticipated.506

Although there were significant disagreements between powerful and weak states with respect to applying the rule of proportionality, this politically charged debate was expressed in the terms of a common normative language. In line with the theoretical framework that I defend in this dissertation, the actors tended to justify their preferred policy proposals by claiming that they would provide the best protection to individual civilians and to the civilian population more generally. Although some of the delegates

506 Federal Political Department, Bern, Switzerland, Volume 1 (1977, 16). 254 explicitly rejected the idea of applying the rule of proportionality to the domain of humanitarian law, the documentary evidence not only suggests that they accepted the rule of proportionality (and simply rejected its application to IHL), but also that they used some of the elements of this rule to show why it cannot be acceptably applied to the domain of military conflict. Similar in kind to the claims that were put forth at the 1899

Hague Peace Conference, the conference proceedings on the Additional Protocols indicate that all of the actors shared the following view: although it is impermissible to intentionally or deliberately kill civilians in war, it is permissible to implement policies that will incidentally lead to the deaths of civilians just in case the policy is militarily necessary and good effects of the policy are significant enough to outweigh the bad effects.

While the representatives of weak states argued that the rule of proportionality should not be included in the Additional Protocols, their argumentative claims indicate that they did not reject this rule as a fundamental rule of morality. Instead, they claimed that implementing this rule would, paradoxically, lead to an increase in deliberate attacks against civilians and that in order to protect civilians it should not be implemented. The representative of Poland, for instance, claimed that “the rule of proportionality as expressed in the [draft] text would give military commanders the practically unlimited right to decide to launch an attack if they considered that there would be a military advantage. Civilian suffering and military advantage were two values that could not be conceivably compared.” Likewise, the delegate from North Korea claimed that

“acceptance of the principle of proportionality would provide war criminals with a

255 pretext for their crimes.”507 Lastly, in one of the most strongly worded rejections of applying the rule of proportionality, the delegate from Romania claimed that

Article 50 introduced into humanitarian law a concept [i.e. proportionality] which was contrary not only to humanitarian principles but to the general principles of international law. It amounted to legal acceptance of the fact that one part of the civilian population was to be deliberately sacrificed to real or assumed military advantages and it gave military commanders the power to weigh their military advantage against the probable losses among the civilian population during an attack against the enemy. Military leaders would tend to consider military advantage to be more important than incidental losses. The principle of proportionality was therefore a subjective principle which could give rise to serious violations. Accidental losses among civilians must be reduced to a minimum through scrupulous application of the Geneva Conventions. All precautionary measures must be taken to protect the civilian population before embarking on an attack. In no circumstances should legal provisions give parties the right to dispose of human lives among the civilian population of the adversary. Modern international law prohibited aggression and only wars of defense against aggression were permitted. The rule of proportionality was therefore against the principles of international law.508

There are two particularly noteworthy points to make about this passage. On the one hand, because it can be expected to lead to or otherwise allow the deliberate killing of civilians, the Romanian delegate very explicitly argues against applying the rule of proportionality to the domain of humanitarian law in particular and international law more generally. Not only does he place a higher moral valence on actions that involve the deliberate or intentional killing of civilians (something that is consistent with the

Harmful Action model above), but moreover he argues that a positive rule of proportionality would make such killings much more likely. On the other hand, it should be noted that he does not explicitly reject the idea of proportionality as a basic rule of morality, but rather he argues against its application to the domain of violent conflict.

507 Federal Political Department, Bern, Switzerland, CDDH/III/SR.8, (1977, 61). 508 Federal Political Department, Bern, Switzerland,CDDH/III/SR.31(1977, 305). 256

In response to arguments such as these, the members of more powerful states tended to argue that the rule of proportionality was more realistic than an outright ban on the use of military force against targets that impose incidental threats to civilians; because of this, the rule of proportionality would be more effective at protecting civilians. In the discussion over Draft Article 46, for instance, a delegate from Canada argued that

With respect to the words ‘to an extent disproportionate to the direct and substantial military advantage expected’ in paragraph 3(b), a reference to proportionality was necessary. An absolute prohibition would result in a very difficult situation, for instance when there was a single civilian near a major military objective whose presence might deter an attack.509

With reference to the same article, the representative from the United States claimed that

the rule of proportionality set out in the amendment in document CDDH/III/27 was based on existing international law, and it was important to record and interpret that rule in article 46. Collateral damage to civilians and civilian objects was often unavoidable and it was unrealistic to attempt to make all such damage unlawful: the rule of proportionality was as far as the law could reasonably go. If the element of intent was omitted, the provision might be used to justify trials for accidents or for unavoidable damage.510

Not only does this particular statement give expression to the idea that intentional harms have a higher moral valence than mere accidents, but it also claims that implementing the rule of proportionality is necessary to provide the most significant protection to civilians while also allowing for the use of military force in difficult combat operations. As Article

57 of Additional Protocol I includes the rule of proportionality, the wishes of the powerful states were reflected in the resulting treaty:

Article 57:

(1) In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians, and civilian objects.

509 Federal Political Department, Bern, Switzerland, CDDH/III/SR.47, (1977, 55). 510 Federal Political Department, Bern, Switzerland, CDDH/III/SR.8, (1977, 67). 257

a. With respect to attacks, the following precautions shall be taken:

i. Those who plan or decide upon an attack shall:….

Refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;

ii. An attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination therefore, which would be excessive in relation to the concrete and direct military advantage anticipated.511

Rationalism in IR Theory and the Debate over Proportionality

The discursive evidence suggests that actors regard the rules of civilian protection as inherently normative and that concerns for reciprocity play a minor role in motivating them to endorse such rules. Not only does Protocol (I) Additional to the 1949 Geneva

Conventions forbid reciprocal attacks on enemy civilians, but furthermore actors rarely talk about or justify complying with norms of civilian immunity out of an express concern for protecting their own civilians. They do indeed want their own civilians to be protected, but this is not the reason why they adopt civilian protection norms; they adopt such norms because they view them as normative.

Also, actors do not adopt the rules of distinction or proportionality through a cost- benefit calculation whereby alternative rules are expressly considered and rejected. We would expect the rational choice account to be most applicable to diplomatic conferences like the ones that led to the Geneva Conventions in 1949 and their Additional Protocols

511 Protocol (I) Additional to the 1949 Geneva Conventions, Article 57. 258 in 1977. This is because diplomatic conferences provide an open forum in which alternative ideas can be raised, considered, debated, and ultimately adopted or rejected.

If political actors are rational animals that endorse norms on the basis of expected-utility calculations, then we should find confirming evidence by analyzing the debates that took place at these conferences. However, at both of these conferences, the principle of distinction was almost completely taken for granted: no delegate ever expressly said that states should not care about protecting civilians. The only question here concerned how states should define the concept of the “civilian” so that it could be more precisely applied in practice.512 At the 1974-1977 conference on the Additional Protocols, they adopted the negative definition that civilians are any persons who are not members of the armed forces. So, with respect to the principle of distinction, states did not adopt the civilian immunity rule through an explicit cost-benefit calculation.

Moreover, expected-utility theory does not explain why states would have adopted a rule of proportionality. Although the rule of proportionality has a long historical pedigree in the just war tradition (it ultimately goes back to the work of St.

Thomas Aquinas), it was not expressly adopted in positive international law until it was included in the 1977 Additional Protocols to the Geneva Conventions. This offers us a unique opportunity to see why states may have adopted this rule. To the extent that states do not openly divulge their intentions in diplomatic encounters, it is difficult to pin down why they might have adopted a principle of proportionality for international humanitarian law. The available evidence seems to suggest that states decided to include the proportionality rule in the 1977 treaty to bring the laws of war in greater accordance with

512 See Kinsella (2011). 259 military realities: it is an unfortunate consequence of modern warfare that civilians often get killed. Yet, they decided that all reasonable attempts must be made to minimize civilian casualties.

As noted above, there was some difference of opinion over whether the rule of proportionality should be included in the 1977 treaty. The weaker states wanted to ban all attacks that could potentially lead to civilian deaths, and they argued that including the rule into IHL would lead to more civilian deaths. Since the rule of proportionality only outlaws intentional deaths, it is always possible for military commanders to kill civilians and then deny that such deaths were “intentional.” In other words, including a rule of proportionality into IHL would create room for plausible deniability, and so it would produce more intended civilian deaths. The more powerful states argued that it was unrealistic to assume that civilians would not be harmed in modern wars, and that it would thus ultimately be more effective at protecting civilians. Moreover, they argued that it would shield people from being prosecuted for accidents.

Even though the weaker state’s arguments betray skepticism toward the rule of proportionality, they did not reject it as a moral rule; instead, they claimed that including it in the treaty would lead to more deliberate civilian deaths. But their skepticism enables us to discern the principled reasons that were used to support its inclusion in the resulting treaty, and in some sense their skepticism is the exception that helps legitimate my argument. In response to the critics of proportionality, the US representative argued that

“collateral damage to civilians and civilian objects was often unavoidable and it was unrealistic to attempt to make all such damage unlawful: the rule of proportionality was

260 as far as the law could reasonably go. If the element of intent was omitted, the provision might be used to justify trials for unavoidable damage.”513 This statement shows that the desire to outlaw intentional harms and yet to allow incidental deaths (or “collateral damages” to use the favored euphemism), causally influenced the creation of an important rule of IHL, namely the rule of proportionality. My claim is that actors adopted this rule because they have a cognitive predisposition to accept the rule of proportionality as a fundamental rule of morality.

But perhaps expected-utility calculations led states to adopt this rule. In my view, this is implausible. On the rationalist view, the only reason why states endorse the principle of distinction is because they do not want their own civilians to die. Whether they are intentionally killed or accidentally killed should make no material difference as long as their deaths are minimized. As such, the only reason why states adopt a rule of proportionality is to minimize non-combatant deaths. Yet, there are other ways to minimize civilian deaths that have never been considered, and since rationalism views states as expected-utility maximizers one would expect them to try to consider all options before settling on any particular design features for institutions. For instance, states could have adopted a rule that allows military commanders to deliberately kill enemy civilians but requires states to pay monetary compensation for damages suffered. If enforceable, such a rule would force states to internalize the social costs of military tactics on civilians, and it may have a similar effect as the rule of proportionality, namely

513 Federal Political Department, Bern, Switzerland, CDDH/III/SR.8 (1977, 67). 261 minimizing civilian deaths.514 In fact, if a baseline value for civilian lives could be set, it would probably do a better job at minimizing their deaths. Since states are responsive to costs, such a rule, if enforceable, would force them to take more precautions when they go to war.

But such a rule has never been considered; the reasons for this are not difficult to discern. As I have demonstrated above, people have innate cognitive and emotional structures that lead them to place a higher moral valence on intentional harms vs. unintentional, merely foreseen, or accidental harms. Moreover, they have a tendency to view other moral subjects as having an “inordinate” degree of value, at least when compared to materialistic values like money. My guess is that if a diplomat were to propose an international rule that allows states to intentionally kill civilians but requires them to pay monetary compensation to the victim, it would be immediately rejected. As some psychologists point out, such a rule would force states to make a “taboo trade off”: it would force them to compare the value of a human life, which many hold to be sacred, with more mundane values like money.515 On the rationalist view that states are expected-utility maximizers, we have no good reasons for explaining why states have never even considered adopting such a rule—a rule that would on the face of it help minimize civilian deaths. On the moral grammar account of discourse and norms, however, we know precisely why states have not considered it: they have not considered

514 Perhaps one might argue that a compensatory rule like this would be inherently difficult to enforce. On the face of it, however, it seems no more difficult to enforce than the existing rules of war. Furthermore, states could construct an international organization that would (a) smooth out the enforcement costs and (b) make sure that the victims do not arbitrarily inflate the damages. 515 See Fiske & Tetlock (1997). 262 adopting such a rule because it would violate innately specified cognitive and emotional predispositions.

Restrictions on Unnecessary Suffering and the Additional Protocols

Overall, there was not a significant amount of debate concerning the general principle associated with protecting civilians and soldiers against unnecessary suffering.

Not only does the idea of prohibiting unnecessary suffering have an intuitive appeal, but it has a long-standing place in the annals of international humanitarian law, gaining its first formulation in the 1868 St. Petersburg Declaration.516 Nevertheless, some of the delegates did attempt to use the idea of unnecessary suffering to promote their own political interests or to gain the moral high ground. In a speech that was quite explicitly based upon the treatment of the Vietnamese population during Vietnam War, the representative from the Democratic Republic of Vietnam introduced an amendment that was intended to forbid the employment of “methods and means of combat designed to subjugate a whole people struggling against colonial domination or foreign occupation.”517

In addition, a number of delegates from weak states attempted to prohibit rather than merely restrict the use of weapons that cause unnecessary suffering in an Ad Hoc

Committee that was set up to examine the legality of conventional weapons. A case in point was the debate over incendiary weapons such as napalm and white phosphorous.

516 The most significant outcome of the St. Petersburg Declaration was the idea that the only legitimate object of military operations is “to weaken the military forces of the enemy,” (Commentary on Additional Protocols, 1987, 401). 517 Final Records, Volume 3, page 192. 263

The representatives of weak states were quite open about the fact that prohibiting the use of incendiaries and other weapons that inflict unnecessary suffering would not only be beneficial from a moral standpoint, reducing as it would the suffering of the victims of war. They believed that it would also give them an added advantage in militarized conflicts with the powerful. After all, many of them claimed that it was mostly powerful states that benefit from the use of such weapons in war. Although both of these attempts failed to produce any significant impact on the results of the conferences, they do suggest that political actors in negotiations often use universalistic moral principles to defend their political and strategic interests. Apart from disagreements such as these, however, there were no major disagreements expressed over the general principle that the infliction of unnecessary physical or mental suffering should be prohibited.

Conclusion

In a 1951 article in the American Journal of International Law, Jean Pictet claimed that “the Geneva Conventions start from the hypothesis that law is a primordial element of civilization.”

Their struggle is against war, which now threatens to annihilate entire peoples. Their aim is to safeguard respect for the human person, the fundamental rights of man and his dignity as a human being, in the hope that universal peace—the desire of all men of good will—may one day be established. Conceived with the idea of limiting, so far as possible, the effects of any fresh war, the Geneva Conventions must be read in the spirit which dominated the discussions at the 1949 Conference—a spirit of reprobation of war. This indeed was stressed by M. Max Petitpierre, President of the Swiss Confederation and Chairman of the Geneva Conference, when he brought the Conference to a close with the words: “The idea of the Red Cross will not be fully understood unless it is seen that,

264

beneath its superficial appearances, it should be interpreted as being, above all, a condemnation of war.”518

Born of a desire to end human suffering and sustained by a yearning to foster respect for persons in the midst of turmoil, the humanitarian regime plays an essential role in the legal system of contemporary international society. In this chapter, we have seen the desire to end suffering in war expressed in one way or another in four of the most significant international conferences of the twentieth century. While the twentieth century certainly experienced its own share of violence and hatred, degradation and mass killing, through it all the intense desire to subject the use of military power to principles of law and justice has never faltered and indeed it has only strengthened with the passage of time.

Furthermore, we have seen that the design of international humanitarian law is influenced not only by the distribution of material power and strategic interests, but also by the universal grammar of moral discourse. Although the laws of war in international society have developed significantly over the course of the 19th and 20th centuries, the same kinds of moral considerations that were used in the 1899 and 1907 Hague Peace

Conferences were used in the 1949 and 1977 conferences on the Geneva Conventions and the Additional Protocols. Over the course of world history, the most significant developments in the laws of war in international society have had very little to do with fundamental changes in how people evaluate the morality of violence. In early European society, there were customary norms requiring states to refrain from attacking civilians, but these norms were fairly diffuse and unspecific, nothing like the norms of

518 Pictet (1951, 475). 265 contemporary international society. In the 19th and 20th centuries, the tools of conference diplomacy and positive international law made it possible for states to restrain the use of violence through codified law. Yet, in their attempts to do this, states did not create anew the norms of international humanitarian law, nor did they draw upon uniquely European models of appropriate behavior. Instead, they drew upon the universal precepts of the grammar of moral discourse.

266

Chapter 7: Universal Justice and Moral Progress in International Law

The steady emergence of the international humanitarian regime in modern world society represents a peculiar kind of moral progress. On the one hand, the humanitarian regime was a product of a seemingly random array of events and chance occurrences: the unique devastation of World War II, the signing of the Geneva Conventions in 1949, the rise of national liberation movements in the post-war era that critically shaped the debates over the Additional Protocols of 1977, etc. On the other hand, the fact that political and military elites in the Warring States era of early China and Muslim legal theorists in early

Islamic civilization defended similar ideas several centuries ago suggests that the progress we have experienced in the history of international society may not be entirely random. In spite of the vast distance of time, space, culture, religion, and ideology, the weight of the empirical evidence indicates that the human beings who inhabited the political systems of Ancient China and early Islam possessed a moral nature that is similar in kind to that of modern citizens in contemporary international society, a moral nature that led them to set forth highly specific precepts for the regulation of armed violence. The similarities between the moral ideas of modern Westerners, early Chinese scholars, and Islamic jurists suggests that there is such a thing as a grammar of moral discourse accessible to all human beings. To that extent, moral progress in international society is a product of random chance, but it is also a product of basic human needs,

267 universal moral sentiments, and shared cognitive precepts. Building on recent work in moral theory, cognitive science, social psychology, and anthropology, this dissertation has provided a crucial step toward understanding the origins of humanitarian protection norms in international society. I have also built more empirical support for the idea that some moral precepts may be universal, and I have attempted to “test” the moral grammar account of judgment against competing theories of international norms. To that extent, this project has added to recent work on moral psychology, particularly work that aims to defend the idea that some precepts are universal and that they influence the basic rules of most legal systems.

In this concluding chapter, I summarize my main arguments, and I comment on the philosophical, empirical, and political implications of this dissertation project.

Finally, I suggest some possible avenues for future research.

A Summary of the Argument

I have argued that structural forces, cultural symbols and practices, and expected utility calculations do not lie at the core of the normative rules of the humanitarian protection regime. In Chapters 3-6, we saw that different structural forces and cultural ideas are nevertheless consistent with the emergence of similar normative precepts.

Moreover, in each of these chapters I have argued that the content of the norms of war is not reducible to expected utility calculations; instead, these norms are rooted in the grammar of moral discourse. In order to understand why political actors in materially and culturally diverse international systems still manage to converge on very similar

268 norms of war, IR theorists need to build upon this account of moral discourse. As such, more direct interdisciplinary work on moral cognition, norms, and discourse will produce major dividends for moral theorists, psychologists, and political scientists.

In the Warring States period of early China, the need to prevail in war created incentives to expand the territorial range of the state and to increase the ranks of the armed forces to include members of the lower classes. These structural forces created incentives to harness the agricultural productivity of the rural peasantry and to create a rational bureaucratic state that could implement necessary social reforms. This led to the development of a “people-centric” ideology in Ancient China that led many political and military theorists to view the needs and interests of common people as the objective of good governance. When it came to the use of violence in international politics, the people-centric ideology of the Warring States period led to a concern for protecting the lives and welfare of ordinary people in rival states. Although the political theorists of

Warring States China were all firm defenders of the monarchic system of government, the ethical principle of respect for the lives of ordinary people did emerge in an embryonic form in this highly advanced, ancient civilization. Warring States political theorists never seemed to converge on the ideas of popular sovereignty or universal human rights, but they did endorse the idea that innocent people should not be needlessly slaughtered in armed conflicts between states. Furthermore, they justified such claims by implicitly using the elementary moral precepts that I have outlined in Chapter 2 above.

In early Islamic society, we saw that the expansion of the Muslim faith not only met with resistance from non-Muslims, but it also led to a religiously-sanctioned

269 recognition of the legitimate interests of people of other faiths, not only in peace but also in war. In contrast to the expectations of a structural account of international norms, the norms of war in early Islam were rooted in structural circumstances that were altogether different from those of Ancient China. The Islamic political system was not one of competing territorial states, but rather it was a religiously inspired empire intent on encapsulating the known political universe for the benefit of humankind. As with all norms in Islamic society, the norms of war in early Islam were based upon the Qur’an and the sayings and customs of the Prophet Muhammad, who outlawed intentional attacks on women and children in enemy lands. Humanitarian protection ideas in this context were not based upon expected utility calculations, reciprocity, or power political motivations. Instead, they were based upon the normative precepts of Islamic law, normative precepts that are strikingly similar to those that emerged in Ancient China and in Western civilization.

Over the course of several centuries, the need to protect civilians from the destructive tendencies of international violence has grown from an almost negligible element of the Euro-Christian just war tradition to a central component of modern international law. In the early stages of Catholic moral doctrine, very few theorists commented on the need to protect innocent civilians from intentional violence, and the legitimate interests of soldiers and other combatants were almost invisible to the eyes of early just war theorists. The proponents of the Peace of God movement in medieval

Europe were more concerned with the protection of Church property than they were with the protection of the lives of rural peasants, who often faced exceedingly brutal treatment

270 at the hands of aristocratic warriors. To the extent that the Catholic Church cared at all about the well-being of peasants, they viewed them as morally significant only insofar as their lives and labor could contribute to the welfare of the Church itself. In Kant’s terminology, they were not viewed as ends in themselves but only as means to achieving the interests of the Catholic Church. As the power structure of European states shifted to incorporate the needs and interests of ordinary people and to give them their due recognition as persons, so too the norms of war shifted to afford greater recognition to legitimate interests of the citizens of foreign states. The definition of the civilian slowly became detached from specific attributes of persons such as nationality, civilizational identity, religious affiliation, and race; it eventually came to encompass all of humanity, regardless of particular social contingencies.

In the late nineteenth and early twentieth centuries, the push to codify the law and customs of warfare led to the creation of the Hague Conventions in 1899 and 1907 and the signing of the Geneva Conventions of 1949 and their two Additional Protocols in

1977. As we saw in the previous chapter, the Hague Conventions and the Geneva

Conventions were both a product of grand historical forces and universal needs and precepts. The Hague Conferences of 1899 and 1907 were heavily influenced by a Euro- centric civilizational discourse that many political scientists and IR scholars have addressed, and so to that extent they had not quite converged on the idea of universal human rights. In spite of this, primary sources reviewed above indicate that international jurists and diplomats did use some basic ethical precepts that inform the moral judgments consistent with the modern human rights regime; moreover, there was an inkling of an

271 idea that the legitimate expectations of combatants and non-combatants are applicable to all human beings irrespective of the contingencies of ethnic or national identity. It was not until the unique devastation of World War II and the rise of national liberation movements in the wake of decolonization that the precepts of the legal norms of armed violence would be regarded as fully universal ethical precepts that apply to everyone.

Implications and Future Research

The Chomskyan theory of mental structure and the account of moral discourse that I have built upon and defended in this dissertation hold that the categories of social cognition are not simply derived from the external environment, but rather they are part of the universal architecture of the human mind. Just as all humans are born with the capacity to make an infinite range of judgments about the grammatical qualities of individual sentences, so too they have the capacity to make judgments about social institutions, rules, and actions.519 This is not to say that the idea of universal justice as it is represented in the works of Kant, the ancient Chinese text the Mozi, or the Qur’an can be found fully formed in the mental categories of all human beings, nor does it suggest that all civilizations will eventually converge upon the same exact principles and values in all situations. Contemporary international society is rife with moral disagreements, and the annals of world history suggest that moral change and evolution are the norm rather than the exception. Nevertheless, the universal grammar account of moral discourse suggests that all people have access to a set of unlearned mental models and that social interaction helps to condition the specific form that these models take in the

519 See Mikhail (2011). 272 development of any individual. As I noted in Chapter 1, the generative grammar account of morality faces three main problems: (1) we need more empirical evidence to show that there are broadly universal moral precepts; (2) we need to test the moral grammar view against competing theories of social norms; and (3) if we wish to understand how the moral faculty influences international law, we need an account of how mental states interact with sociological, political, and cultural factors to generate the kinds of legal structures that we observe in international social life. This dissertation has attempted to resolve these problems, but to fully deal with them more work is needed, particularly with respect to the third problem.

As a guide for future work, here is how we might attempt to more adequately resolve this third problem. The idea of universal justice, if there is such a thing, exists in a very “shadowy form”520 in the basic mental models that people use to think about ethical problems. At the level of individual persons, empirical research shows that people use fairly similar criteria to reason their way through moral dilemmas, and some studies suggest that elementary rules of reciprocity underwrite the judgments of culturally unencumbered children, including infants. As people interact with others, they confront the need to justify their needs and interests to others in a language that “the Other” can accept. Similarly, at the level of social systems, norms of reciprocity and respect underwrite universal prohibitions on lying, disloyalty, and the taking of innocent lives.

As societies come into contact with others and build ties of interdependence, they must confront the basic fact of ethical pluralism, and hence find mutually agreeable ways of carrying on their relationship. To be sure, this description overlooks the historical reality

520 Kohlberg (1981, 47). 273 of political domination and cultural hegemony, and the annals of human history suggest that mutual justice between peoples is a rare commodity. But as civilizations develop, and as peoples develop ties of collective identity with one other, they tend to converge upon mutually acceptable norms that only existed in a shadowy form at earlier points in their history.

The idea of mutual justice, then, does not necessarily come about as a result of cultural hegemony or power, although both of these have been operative throughout human history, but in addition the convergence of ideas may come about through processes of dialogue and social empowerment. As the Self learns to see others as similar in kind to itself, its inherent knowledge of justice leads it to adopt particular restraints on how the Other should be treated. I have shown that in the case of armed conflict, the principles of justice in war are indeed fairly universal. Crucially, it is through dialogue and empowerment that the similarities of the Other can be duly recognized. As the case study of early China shows, social mobility and the dispersion of power led elites to define the material interests of the people as the objective of good governance, a development that was crucial for the emergence of humanitarian protection ideas. Similarly, in Western civilization, humanitarian protection ideas emerged in part through processes that involved giving a voice to the concerns of vulnerable populations, in this case the peasant classes who formed the popular core of the Peace of God movement. This suggests that in order to advance the cause of universal justice, in order to further cultivate the ties of cross-cultural collective identity in international society, the voices of ordinary people need to be given greater influence than they are at present. At

274 the very least, these comments indicate how we might attempt to describe how broader sociological forces interact with mental structures to generate support for humanitarian norms.

One might argue that insofar as the universal grammar account presupposes the idea that some ethical judgments are invariant across societies and civilizations, I am guilty of ethnocentrically projecting Western norms onto other cultures that may disagree with them. Although I do make a claim to ethical universality, the kinds of judgments and precepts that I take to be universal are devoid of what might be called “metaphysical presumptions” about the nature of social values, the existence of God, and so forth. I assume that ethical diversity is a basic fact of social life, and it will not always be possible to get people to come to a reasoned agreement about issues of common concern.

Nevertheless, the empirical case studies that I have presented in this dissertation show that there is a fairly significant degree of agreement across cultures and civilizations on rules for the prosecution of military violence, and so in that sense I have not made ethnocentric judgments about the views of other cultures. The empirical evidence suggests that my argument is correct. To say that I am ethnocentrically projecting my views onto others is not only to disregard the evidence, but moreover it is to presume that principles of justice and moral respect are the sole provenance of Western civilization, a judgment that is far more ethnocentric than anything that I have said in this dissertation.

From the perspective of social science, my research reveals a fundamental inadequacy in the way that most political scientists approach the phenomena of international norms and culture. Culturally constituted ideas play an incredibly important

275 role in both domestic and international politics, influencing how actors frame political issues, evaluate policies and institutions, and deliberate about the shared terms of social existence. It is virtually impossible to explain complex social processes and outcomes without somehow bringing in the idea of culture. Nevertheless, the theoretical framework defended in this dissertation gives political scientists a new way of thinking about the relationship between human cognition and international norms, institutions, and culture. At a time in which the study of cognition and neuroscience is taking off at a rapid pace, political scientists need a way of integrating the study of culture with emerging trends in the cognitive sciences. Otherwise, the social ontology that many IR scholars implicitly adopt—one which holds that cultural facts are autonomous from psychological facts—risks being overwhelmed by falsifying data. Regardless of whether we adopt the moral grammar framework that I use in this dissertation, to explain how advanced civilizations converge on similar norms and institutions, IR scholars need to rethink the accepted approach to the study of international norms; this dissertation has provided a crucial first step in this direction.

Furthermore, my research findings suggest that the hardline distinction between materialists and constructivists in IR scholarship is not only theoretically unproductive, but in addition it is unwarranted. When the constructivist paradigm took off in the early

1990s, it was important to demonstrate the power of ideas by showing how they constitute the material world via social symbols and shared meanings. While the ensuing debates between constructivists, realists, and rational choice theorists led to fruitful debates and empirical research, they seemed to foster the sense that materialist

276 explanations and constructivist explanations are wholly dichotomous. My research suggests that it is possible to integrate materialist explanations that focus on things like power, wealth, physical geography, and so forth with constructivist explanations that focus on culture, symbols, and meanings by looking more closely at the structure of human cognition that unites material forces and cultural ideas. The study of social processes and ideas can be vastly improved by accepting a social ontology that views human beings and their mental structures as the intervening forces that unify the material world and intersubjective experiences to produce institutional outcomes. By bringing the psychological correlates of human agency more clearly into theoretical explanations, IR scholars can hopefully move forward in developing a more unified account of international social life. As I have shown throughout, people respond to social structures and material circumstances by creating particular kinds of social norms, but the norms that they create are heavily influenced by the inherent structure of human cognition, by the universal grammar of moral discourse.

Finally, my research suggests that the cross-cultural study of moral discourse in world politics is a sorely underappreciated source of insights into the nature of international norms. In my view, the reason why many IR theorists have neglected to compare the discursive practices in culturally diverse civilizations and societies is that they have implicitly adopted the view that the similarities are so slight that they are theoretically negligible. Not only does my research suggest that there are cross-cultural similarities in moral discourse and cultural institutions, but it gives us a useful framework for making comparisons. Importantly, my research suggests that many of the prevalent

277 cultural ideas in contemporary world society, ranging from the international humanitarian regime to the discourse on human rights, have counterparts in other societies and past civilizations.

Final Thoughts

Intentional attacks on civilians are a mere subset of the injustices in contemporary world politics, and one might argue that current institutions such as international humanitarian law and the International Criminal Court provide effective mechanisms for remedying these injustices in a way that is consistent with the objectives of international law. But given the US drone strikes in Pakistan and other military hotspots in the Middle

East, the Israeli assault on the Gaza Strip in 2008-2009, and the ongoing attacks on civilians and protesters in authoritarian states across the Arab world, attacks on innocent people are serious concern that should be remedied by more effective institutional solutions at the international level. In the current international legal order, however, the interests of individual people are represented by sovereign states and intergovernmental organizations like the United Nations and its constituent bodies. To fully meet the human need for recognition and the ideals of equal respect and justice, international institutions need to be more thoroughly democratized so that individual persons have the ability to have their voices heard and to redress their grievances through impartial legal procedures at the international level. As I suggested above, it is often through dialogue and empowerment that collective identities are forged and universal principles of justice given institutional expression. To achieve the ideals of justice that emanate from the

278 grammar of moral discourse, therefore, we need international institutions that cultivate cross-cultural dialogue and social empowerment.

More speculatively, to give full expression to our universal sense of justice, fundamental changes in the institution of sovereignty are in order. Regardless of the major developments in the laws of war that I have traced in this dissertation, sovereignty still implies, at the end of the day, the right to kill people in war.521 Although the law prohibits intentional attacks on civilians, in practice states can still violate the law and hide behind the shroud of sovereignty to avoid the glare of justice. To extend greater protection to the inherent rights of persons, therefore, elementary infringements on the traditional ideals of sovereignty are necessary. If the rule of law stops at the edge of territorial borders, and if international institutions are subject primarily to the interests of sovereign states, then the legitimate expectations of civilian individuals and the universal idea of justice will not be met. To advance the cause of moral progress in world politics, our shared sense of justice should not be subordinated to the arbitrary concerns of the sovereign state and its military interests. Indeed, it should be given greater expression.

521 Wendt (2003, 523). 279

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Appendix A: Draft Articles to the Geneva Conventions

Draft Articles Content Article 25 “Protected persons are entitled, in all circumstances, to respect for their persons and their honor. They shall at all times be humanely treated and protected, particularly against acts of violence or intimidation, against insults and public curiosity.”

“Without prejudice to the provisions relative to their state of health, age, and sex, all protected persons shall be treated alike by the Party to the conflict in whose power they are, without any difference founded on race, religious belief, or political opinions, or any other distinction based on similar criteria.”

Article 29 “No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.

Torture and corporal punishment are prohibited.”

Article 29A (Soviet “The Contracting States undertake to prohibit, and to Version) consider as a serious crime, all murder, torture, maltreatment, mutilation, medical or scientific experiments not necessitated by medical treatment, as also all other means of exterminating the civilian population.

Furthermore, all other measures of brutality used against protected persons in the hands of the Contracting Parties are prohibited, whether applied by civilian or military agents.”

Article 29A (US Version) “The Contracting states specifically agree that each of them is prohibited from taking any measure which has as an object the physical suffering or extermination of protected persons in its power. The prohibition of this 298

article extends not only to murder, torture, corporal punishment, mutilation, and medical or scientific experiments not related to the necessary medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military administrators.”

Article 29A (Text Adopted “The Contracting States specifically agree that each of by the Drafting Committee) them is prohibited from taking any measure aiming at the physical suffering or extermination of protected persons in their hands. This prohibition covers not only murder, torture, corporal punishments, mutilation and medical treatment of a protected persons, but also any other measures of brutality whether applied by civilian or military agents.

Article 30 “No protected person may be punished for an offense he or she has not personally committed. Collective penalties are prohibited.

Measures of reprisals against protected persons or their property are prohibited. Any destruction of personal or real property which is not made absolutely necessary by military operations is prohibited, as are likewise all measures of intimidation or terrorism.”

Source: Federal Political Department, Bern, Switzerland (1950).

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Appendix B: Articles in the Final Act of the Fourth Geneva Convention

Final Article Content Article 27—Treatment: “Protected persons are entitled, in all circumstances, to General Observations respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.

Women shall be especially protected against any attack of their honor, in particular against rape, enforced prostitution, or any form of indecent assault.

Without prejudice to the provisions relating to their state of health, age, and sex, all protected persons shall be treated with the same consideration by the party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion, or political opinion.

However, the parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.”

Article 32—Prohibition “The High Contracting Parties specifically agree that each of of Torture, Corporal them is prohibited from taking any measure of such a Punishment, etc. character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishments, mutilation, and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents.”

Article 33 “No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are 300

prohibited.

Pillage is prohibited.

Reprisals against protected persons and their property are prohibited.”

Article 53—Prohibited “Any Destruction by the occupying power of real or personal Destruction property belonging individually or collectively to private persons, or to the state, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.”

Source: Federal Political Department, Bern, Switzerland (1950).

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