Chapter 12: Weapons Research and Supreme Emergency

I will assume that the realist account of war and of why states go to war, and why and for what ends states conduct WR, is correct. I have argued that if S undertakes WR on behalf of a state, she must assume it will pursue its own interests in accordance with realism, and hence she should therefore expect that the products of her work will be used by that state exclusively to promote and defend its interests in ways it thinks best; and this may mean they are used in an unjust war, sold to belligerents in an unjust war, licensed or given away, and so forth. But none of this implies that the conditions for a just war cannot be satisfied when a state embarks on a war to protect its vital interests.1 It does mean that statesmen and women do not deliberate over just cause, worry about having the right intention, do (universal) cost benefit calculations that take account of the interests of all involved, and so forth, but it is still possible that all these conditions become satisfied, so to speak, fortuitously. One would expect this would be most likely to happen when a state is the victim of unprovoked aggression, and so clearly has just cause, when the price of surrender looks to be very great or is not negotiable, and when the state in question is a signatory to international conventions about war fighting. WW2 from the perspective of the Allies looked to be an example that fits this model, at least in the context of jus ad bellum. The aggressor, Nazi Germany, was a totalitarian state run by a dictator who led a party that espoused a violent and irrational form of racist ideology which mandated programmes of conquest, extermination and annexation of land. In the east especially, it seems that countries like Poland and the Soviet Union had little choice but to resist, as the war was over their very existence.2 Such circumstances would therefore appear to those under which there would have been grounds to undertake WWR even in a world of states acting according to realism, were it not for the fact that JWT prohibits WWR. But we now need to re-examine this constraint in the light of such exceptional circumstances, namely, in the supreme emergency of WW2.

Certain exceptional circumstances can qualify as a supreme emergency: it will be recalled from the conclusion of Chapter 9 that Walzer introduced the idea of supreme emergency in Just and Unjust Wars. Walzer’s claim is that in a supreme emergency certain in bello constraints may be overridden, specifically the principle of non- combatant immunity. To say that some principle is ‘overridden’ means literally that it is no longer obeyed, that what it normally forbids is now being done. It is not clear, however, that in a supreme emergency what is now done is morally permissible or, if it is, why it is. So what we need to do is to see whether this is so, whether in a supreme emergency certain acts that were formerly forbidden as morally wrong are now permissible - what has been called the supreme emergency exemption. And we

1 Right intention would seem to be a problem, as one assumes that states acting under realism would never pass up the opportunity to promote their interests in ways that are not related to the just cause. But this is an ad bellum condition and if one considers the war that is the main topic of this chapter, WW2, Poland, France, Britain and the Soviet Union did not have the opportunity in 1939 and 1941 to do much but try to defend themselves. Before 1941 the Soviet Union saw the chance to gain territory in the pact with Germany over the partition of Poland, but that was before the Soviet Union was at war. 2 Stalin is an unlikely candidate as a statesman who led a country in a just war, given the avowedly realist stance of Marxist Leninism. His dealings with Hitler via meetings between the respective foreign ministers about the partition of Poland, the so-called Molotov-Ribbentrop Pact, and other deals were a paradigm of exploiting the international situation in the interests of the Soviet Union. Stalin’s war from 1941 was very much a just war by default - until he was able to capture German soldiers and mistreat them in turn, and later on kill German non-combatants . need to see what a supreme emergency amounts to. I will only discuss these issues in relation to WW2, for if the exemption does not apply there, it will never apply to anything. So now we come back to look again explicitly at WWR. We have seen that WWR is proscribed by JWT because it is incompatible with ad bellum proportionality, and we have seen that if states and statesmen act in accordance with realism, then they will use the products of WWR in ways that they think will best protect and promote their vital interests, without regard for any ‘ethical’ concerns. I have therefore concluded that there is no scope for any generalised or overall justification for any kind of WR along the lines “Whenever C is engaged in a just war…” or “Whenever C seeks to defend its vital interests…”. These conclusions were based on propositions like UT about the unforeseeable future harms made possible by WR and of the need to justify such morally wrong action.

We have therefore reached the point where the only recourse left for justifying any form of WR is to appeal to certain particular and exceptional historical circumstances where there is a pressing need for defence against a truly dreadful enemy – in other words, a supreme emergency. It is possible, given the moral theory that we have adopted, that in a supreme emergency rules such as the in bello prohibition on killing non-combatants or our rule against WR can be overridden. It is possible because the theory is not absolutist; it allows exceptions. Even so, when violating a rule harms people who have done nothing to deserve harm, it is hard to see how there could be justification for that violation. The supreme emergency measures discussed by Walzer, namely deliberately bombing German civilians, and WR both do just that: harm innocent people. To try to come to grips with the issue, I will therefore need to carefully explain what a supreme emergency is, show that WWR qualifies as a supreme emergency measure, give a (genuine) example of a supreme emergency – Walzer’s example is not a good one, the German invasion of the Soviet Union in 1941 is much more plausible – and discuss the kinds of justification possible for WWR done on behalf of the Soviet Union. To make all this manageable, I divide the chapter into two parts: Part A will be concerned mainly with matters of exposition and fact, such as the idea of a supreme emergency and a brief description of the German invasion of the Soviet Union, while Part B addresses the moral issues. In Part B I will compare Walzer’s example with my own and argue that the grounds in favour of WWR are weaker there than the grounds in favour of the bombing of German non- combatants. I will eventually claim that the case against WR can be upheld even in this supreme emergency situation.

A: Supreme Emergency in World War Two

Weapons Research in World War Two

Before discussing the idea of a supreme emergency and its relevance to weapons research in WW2, it is worth asking first why a much greater range of WWR done in that war, not just done by countries facing a supreme emergency, but by all the Allies, should not have been justified. Granted that WWR tends to produce better weapons and better weapons are more effective means for winning the war, why should not all such WWR be justified? More effective weapons would, all things being equal, result in fewer casualties for the Allies, and perhaps even fewer for the Germans (and Japanese), as the war would have been over quicker.3 In response, we should be clear,

3 This is a familiar, and rightly discredited, justification for Hiroshima and Nagasaki. first of all, that these questions are not directed to the statesmen or military commanders who have some special responsibility to their own citizens and soldiers; they are to be addressed from the impartial moral standpoint of S.4 So, in reply, we should note first that this standpoint is not compatible with doing whatever it takes to win the war in most efficient way, in view of military efficiency. Military efficiency, for instance, denies the principles of jus in bello. It may well be more efficient to kill prisoners than feed and house them. It is easier to take food and other resources from enemy non-combatants than produce and transport them oneself. Destroying food and infrastructure when retreating may slow down the enemy sufficiently for a resumption of offensive operations. Committing atrocities may force enemy non-combatants to co-operate. So it clearly does not follow that whatever it takes to win the war is justified, for all of these actions are proscribed by any acceptable theory about the morality and legality of warfare.

In this book I have argued that undertaking WR is morally wrong and requires justification. This applies to all forms of WR, including WWR; for why should WWR be an exception? The reasons given above for justifying WWR are that it makes the war easier to fight, easier to win, but then so do actions that violate jus in bello, so getting the latest weapons because that makes the war easier to win cannot in itself be a good enough reason. Of course, I grant that it may seem that WR is different because it is research directed to the producing new and better means to fight war, and the issue concerns how to fight a war, and so it looks as if WWR is not at all the same as killing prisoners or stealing food. But contrary to this appearance, the argument of this book is that all forms of WR require justification, and to state that it must be done to fight a war is to assume that this amounts to justification. It does not. We have seen that even if C is fighting a just war, ad bellum proportionality requires a balancing of costs against benefits, and that since WR introduces new costs, costs that cannot be foreseen, the condition proscribes WR. Arguments from military efficiency amount to claims about the reduction of costs if certain actions are undertaken, but these reductions are always at the expense of certain others, prisoners, enemy non- combatants, and in the case of WWR, victims of future wars and conflicts. What WWR does, of course, is to provide the means to bring about what is proscribed by jus in bello. Non-combatants, and prisoners of war, are killed by weapons produced by previous generations of weapons researchers – such as Mauser, Maxim and Vickers. The weapons produced by the (at the time) current generation of weapons researchers, like Kalashnikov, Szilard and Fermi, are the means to kill non- combatants and prisoners of war in the future.

Hence if the Allies could win the war without undertaking WWR then they should do without it and use their existing weapons. The response that this is unfair, and if the Germans conduct WWR why should not the Allies, is not persuasive. It is not persuasive because, again, it does not follow that if the Germans killed their prisoners rather than feeding them, then it is not fair if the allies are not allowed to kill their prisoners. It is not persuasive because if something makes it easier to win the war, and if the other side does that thing, then, whatever it is, 'we' are allowed to do it as well is not justifiable. I said that if the Allies could win the war with their existing weapons, then they should do so, even if this meant that the war lasts longer and involves more casualties. This is supposed to be the standpoint of S. S is not responsible for the war and the harms that are done, and S is not responsible for preventing these harms. That

4 This restriction was discussed in Chapter 1. much is clear. But let us now suppose that without the new means of fighting provided by WWR, the Allies will lose the war. Is engaging in WWR now justified? It is not morally justifiable to do everything whatsoever to win a war. It is not morally justifiable to do the things already mentioned in the section, like kill prisoners and steal food from non-combatants. By the same token, it is not morally justifiable to use weapons of mass destruction. However, if the costs of losing the war are very great indeed, and it is known that they are, then does this not override these prohibitions on WWR and ‘other measures”? That is the question raised by supreme emergencies, to which we now turn.

The Idea of a Supreme Emergency

Walzer discussed the idea of a supreme emergency in his book (Walzer 1977), in an article published some ten years later (reprinted in Walzer 2004) and elsewhere. The article elaborates the discussion of the book, tries to clarify what is at issue, but I think does not quite succeed. To see what is at stake, I will introduce the idea of a supreme emergency with reference to Walzer’s book and to his only example. According to Walzer, Britain faced a supreme emergency in WW2 from 1940, after France had been defeated in May of that year, and Britain ‘stood alone’ against Germany, until the US entered the war in 1942. A supreme emergency is not merely when a country seems on the verge of defeat in war, it is also a function of the quality of the opposition and the nature, consequences and imminence of the defeat – these things make up Walzer’s two criteria for the application of the concept (Walzer 1977: 252). Nazi Germany was not any run of the mill enemy, but a very bad enemy indeed, one who would not merely seek to defeat an opponent:

Nazism was an ultimate threat to everything decent in our lives, an ideology and a practice of domination so murderous, so degrading even to those who might survive, that the consequences of its final victory were literally beyond calculation, immeasurably awful. We see it – and I don’t use the phrase lightly – as evil objectified in the world, and in a form so potent and apparent there could never have been anything to do but fight against it… What choice do they [soldiers and statesman] have? They might sacrifice themselves in order to uphold the moral law, but they cannot sacrifice their countrymen. Faced with some ultimate horror, they will do what they can to save their own people. This is not to say that their decision is inevitable, but the sense of obligation and of moral urgency that they are likely to feel at such a time is so overwhelming that a different outcome is hard to imagine (Walzer 1977: 253-254).

So we see that the kind of threat that is faced in a supreme emergency is a kind of existential one, one that wipes out a way life and replaces it with another that is ‘immeasurably awful’. But we also see an equivocation: the decision to take action (which contravenes the laws of war) is ‘not inevitable’, yet the need to take action is ‘overwhelming’.

The deep moral question faced by those soldiers and statesmen that led the allied fight against the Nazis, Walzer believes, was whether to override the laws of war (jus in bello), and, for example, bomb German (and Japanese) cities, without any pretence of discrimination, of trying to avoid non-combatants – in fact they deliberately tried to kill civilians. Winston Churchill ordered Bomber Command to do just that in late 1940 and the first deliberate terror bombing campaign, the first of many, was Operation Abigail Rachel against the city of Mannheim on December 16. The final result of the campaign, begun then and continued throughout the war, was just over a million German non-combatants killed or seriously injured - Hamburg, Dresden and Cologne are familiar names. There were even more killed and seriously injured in Japan when the United States Air Force (USAF) started its intensive bombing of Japanese cities in 1945, which culminated in Hiroshima and Nagasaki.5 Jus in bello, not to mention various war conventions from the Hague in 1899 to Geneva in 1929, prohibits the deliberate harming of non-combatants, and though the category could exclude those who contribute directly to the war effort, for instance, by working in armaments industry, the majority of the casualties of the allied bombing of German and Japanese cities were bona fide innocent non-combatants. Thus Churchill, Roosevelt, Truman and others deliberately overrode the cardinal principle of jus in bello. The moral puzzle here is whether there is some sense in which this action could have been morally justified and hence permissible. Before addressing the question, we need to correct what appear to be misunderstandings about the circumstances of the decision to bomb German cities. If these are not misunderstandings, then Walzer’s imminence criterion must be broadly interpreted, to mean that defeat is likely or possible, rather than strictly ‘imminent’.6

The first point to make about the example, and something everyone seems to agree about, is that Britain certainly did not face the prospect of defeat when Hamburg, Cologne and Dresden suffered atrociously in 1944 and 1945. So those over-ridings of the laws of war were not justified by any supreme emergency, as Walzer correctly points out. In fact the prospect of imminent defeat for Britain was in reality over by September 1940, for reasons I will give in a moment, before the first terror bombing was ordered in November of that year. The situation was, however, much more fraught before September 1940, for it was by no means clear that a German invasion of Britain would fail, and, as Walzer notes, the only offensive weapon available to engage Germany was the bomber, and bombers could only fly at night without committing suicide. Such missions had therefore no hope of discrimination, and hence all Britain could do then by way of ‘fighting back’ was to bomb German cities and kill German non-combatants, and that remained true until D-Day.7 However, as others have pointed out, killing German non-combatants was not killing German soldiers - it

5 The US Eighth Air force joined Bomber Command in 1943 in what was aptly named Operation Pointblank, whose aim, inter alia, was to destroy the morale of the German people – in other words, to bomb them into submission. This was simply to increase the operations already in place, and by 1944 the US was bombing by day and the RAF by night. This practice, and the experience gained for instance with incendiaries, was used as a basis for the intensive bombing of Japan in 1945. Very large areas of major cities in German and Japan were destroyed: over 60% of large cities like Cologne, Düsseldorf, Dresden and Hamburg were destroyed, and over 50% of Tokyo and Yokohama. A.C. Grayling’s book (Grayling 2007), which is a sustained argument for the proposition that the area bombing of WW2 was unjustified although he does not engage with Walzer or discuss any other philosopher’s accounts, has many factual details about the campaigns against German and Japanese cities. 6 But this would mean that supreme emergencies would not really be emergencies, and it would mean that they were not such rare or special events that warrant special measures that violate deeply held moral principles about the immunity of innocents from harm. Of, alternatively, it would allow the violation of such principles on too many occasions, and that would be an unacceptable consequence. 7 The probability of a bomb dropped at night in 1940 of hitting within a mile a specific target was very small indeed. was not a measure aimed at the Wehrmacht, the German armed forces - so why did Churchill’s advisors recommend it and why did he issue the order to carry it out? Walzer says that Churchill and his advisors believed that a bombing campaign of this kind would impede the German war effort. Evidence found since 1945 has established that it was very difficult to break the morale of either the German or, for that matter, British or Japanese people by bombing their cities.

A very great deal of damage needs to done, such as was inflicted on Germany from late 1944 and Japan from 1945, to have any great impact on the war effort or on morale. So Churchill and his advisors did not in fact have whatever justification they thought they had – the measures did not work. But we can grant that they thought the measures might work, although the supreme emergency had passed by the time they were enacted, and they may well have realised this.8 I will not discuss the details of the example much further, though the following may be said: The plan to invade Britain was codenamed Operation Sealion. But Operation Sealion had no prospect of succeeding until the Royal Navy was out of action – the invasion fleet would all be sunk if the Home Fleet occupied the Channel - and in 1940, and for the rest of the war, the Royal Navy was unchallenged. The Germans were aware of this, and their bombing campaigns of mid-1940 were designed to so deplete the RAF that it could not defend the Royal Navy from air attack in the event of an invasion, and so the latter would not have been able to defend the British coastline. However, as I have said, by the time the bombing of German cities in December 1940, the ‘Battle of Britain” was over, and Britain had won that battle.9 Moreover the German admirals expressed doubts about whether an invasion would have been possible even with complete air superiority (Murray 2002: 45-6).10 I think we should therefore conclude that this is not a good example of a supreme emergency, rather than allow the broad reading of what counts as an ‘imminent’ threat.

If Britain did not face a supreme emergency when it carried out its ‘supreme emergency measures’, then we do not yet have an example of a genuine supreme emergency. Perhaps there are none? Orend is also not convinced that Britain was facing supreme emergency in 1940 (Orend 2006: 148). Nevertheless, he does not think that the idea is a ‘moral loop-hole’ in JWT without any real application; instead, he thinks that for peoples facing genocide, such as the European Jews in WW2, there was a supreme emergency. But it seems that the use of the idea is being extended here from states, and statesmen who are confronted with the choice of using whatever measures they can to fight against their enemy regardless of the laws of war, to peoples who are faced with an extreme threat but who themselves are powerless to respond because are no measures available to them. Broadening the idea in this way would include many of the colonial expansions and wars of gain mentioned earlier: the Australian aborigines, American Indians, the Incas and Aztecs and many native peoples who had their ways of life destroyed and faced genocide by European

8 Churchill very rarely expressed any regrets for anything he did during the war. A more plausible view of his intention, whatever his rhetoric, was revenge, revenge for attacks on English cities such as London, Southampton and Coventry. 9 The Luftwaffe stopped bombing airfields and started bombing cities and towns on September 7 1940. Thus the aim of destroying the RAF and preparing for an invasion was given up on that day. 10 Grand Admiral Raeder told Hitler that an invasion was a last resort and then only with total air superiority. The German navy, the Kreigsmarine, was no match at all for the Royal Navy at any stage in the war. colonial powers.11 Like the colonised peoples of the third world, none of these countries had weapons available for use against non-combatants and hence there was no question of any supreme emergency exemption for violating jus in bello. We should therefore add a third criterion for the application of the idea of a supreme emergency:

There exists a supreme emergency when state C

1. Is confronted by a ‘truly terrible’ enemy bent on conquest. 2. Defeat by that enemy is imminent. 3. Is only able to respond militarily with measures that violate the laws of war.

I should make it clear that I have defined “supreme emergency” here with reference to states and not to ‘peoples’, ‘political communities’ or any other body – though they will be affected by the situation - because it is only states that have the capacity to respond to terrible and imminent threats.12 Without that capacity, there can be no question of supreme emergency measures being put into practice, and hence no point to worrying about any deep moral issues concerning the application of those measures.13 I note that the Soviet Union therefore faced such a situation in June 1941.

Weapons Research as a Supreme Emergency Measure

The ‘traditional’ measures to be used to forestall a supreme emergency are the killing of non-combatants – this is the only kind considered in the literature and it is what has generated all the controversy. Can now we generalise this notion and entertain a range of measures, including WWR? The first point to notice if we do this is that the timescale of supreme emergencies may need to be extended. The reason why a supreme emergency is an emergency is because of its immediacy: according to the story, in mid-1940 Britain had to do something then and there in order to stave off Operation Sealion. WWR, however, takes time and there is no guarantee of success - there is no guarantee that the WWR will itself have a successful outcome and, if it does, there is no guarantee that its products will do the intended job. However, we should not be further misled by Walzer’s example. The fact that a threat is immediate does not imply that it cannot be on-going. Most people believe that the Soviet Union faced a supreme emergency from the opening of Operation Barbarossa in July 1941 until at least Stalingrad in November 1942, for about a year and half at minimum. It seems that this may have been enough time to do WWR, which was not in 1941-42 as scientifically intensive as it is today (with the exception of the Manhattan Project). So it is consistent with the original idea of supreme emergency that the emergency can be on-going.14

11 Martin Cook wonders why the European conquest of the North American did not constitute a supreme emergency: clearly it did, given the idea of supreme emergency introduced by Walzer, see Cook 2007: 142. 12 I am setting aside terrorists, who do have the capacity to fight and are not states but substate actors, because, by definition, terrorists are not responsible to the demands of morality. 13 As we will see, some have accused Walzer of a pro-state bias and have wondered why other groups are not similarly privileged. My point is that the preservation of the state is necessary for the preservation of peoples, or whatever it is that is really of value. There must be a pro-state bias if there is be an question of a supreme emergency exemption. 14 And Walzer said that the emergency facing Britain lasted from May 1940 to December 1942. There are, however, seemingly two important differences between WWR considered as a supreme emergency measure and the deliberate killing of civilians. First of all, WWR is, we assume, intended to produce the means to fight the enemy’s armed forces, not to kill and terrorise his civilian population. Or, more circumspectly, it is intended to produce means that can be used for direct military intervention against the enemy. One of the problems with killing non-combatants is whether it has any point, as it does not engage the armed forces that posed the threat. WWR as a supreme emergency measure looks to be a much more useful thing to do. But intentions are not by any means the whole story when it comes to responsibility and we have seen that S must accept responsibility for unforeseen harmful effects of her work, given the character of this work. So the fact that WWR may seem more likely to be effective and that it is intended for purely military ends does not mean that other harmful outcomes can be set aside. Secondly, as noted already, it has been assumed throughout that S is an individual moral agent who needs to decide whether to engage in WWR. S will, one assumes, be a citizen of some state, but she will not thereby have an special role responsibility for preserving her community. S is not a statesman or leader; statesmen and leaders are not the ones who do WWR, they are the ones who authorise, pay for and otherwise support WWR. They may even have special responsibility to try to promote the best and most extensive WWR programmes possible, but they are not weapons researchers. This is a disanalogy with our previous discussion of supreme emergency, and will be important in Part B.

In the next section I will describe the supreme emergency faced by the Soviet Union in 1941. I will assume, as above, that this was an on-going state of affairs, though maybe not on-going enough to do significantly innovative WWR, and that Stalin and Soviet supreme command, Stavka, became aware of the magnitude of the threat shortly after the invasion. Before I do, I will represent the supreme emergency situation here, with reference to WWR, in terms of the probabilities for the relevant events and outcomes, for instance, P(E) stands for the probability of the supreme emergency being a reality. I did something similar in the appendix to Chapter 5, where we anticipated this discussion and used the notion of a supreme emergency and supreme emergency measures to illustrate some of the issues that agents are faced with when they try to foresee and assess the consequences of their actions. Readers might therefore like to remind themselves what that was all about and what the terminology means by reviewing that appendix (and also notes 40-42 of Chapter 5 for an explanation of the terminology). I will refer to these relations again in the next part of this chapter, where they will play a role in our final decision about the justification of WWR in supreme emergencies.

The likelihood of E, the supreme emergency threat being implemented or carried out, can still be represented by expression 1 of Chapter 5, but now the value ϵ will be equal to unity, which means that the emergency will in fact take place, or is actually taking place.

P(E) = ϵ = 1

So another disanalogy between this example and the case of Britain in 1940 is there is little or no doubt about value of P(E). With regard to the other relations mentioned in Chapter 5, there are clearly analogues of the relations expressed by 3-5. Suppose we let W stand for WWR done in response to E, then we have the following alternatives:

P(~E|W) > P(E) > P(E|W) 6.

P(~E|W) = P(E) = P(E|W) 7.

P(~E|W) = P(E) = P(E|W) ≈ 0 8.

These stand for W being effective, ineffective and pointless, respectively, and what we understand now by P(~E|W) is the probability of E not being realised given W and hence 6 is the condition for the effectiveness of W, while 7 and 8 signify that W is ineffective and pointless respectively.15 In contrast to the situation with M, the measure that targets non-combatants, we would perhaps expect 7 and 8 to be less likely to hold. We would expect that conducting WWR would provide the means to better resist E, to defeat the enemies armed forces. This is what WR does: it provides the basis for new and improved weapons. It does not follow that W is bound to be successful and that P(E|W) is equal to one and that W is bound to be successful. For example, factors such as the time it takes to undertake W and the time available to combat E will be important. However what is true is that 7 or 8 will not be selected in preference to 6 in view of the very nature of W: W is a priori the kind of measure that it likely to work, M is not.

Finally, there is an analogue to expression 2. Since all forms of WR introduce new ways of making the means to harm, we reproduce 2 as

P(H|W) ≈ 1, P(~H|~W) ≈ 0, 9.

By H I now understand harms that are done as a consequence of W that are not included in the military conflict for which the outcomes of W are intended. Thus, for the AK-47, H refers to all the deaths and injuries caused by the weapons since May 1945. Since the gun did not become available until after that date, then it follows that none of the harms that it caused were ‘legitimate’ or intended in the sense that they took place in the Great Patriotic War. In the case of the AK-47, it is therefore 8, not 6, which expresses the correct relationship.16 I have not set P(H|W) equal to one, only again approximately equal to one, as it is not absolutely certain that the products of WWR will necessarily be used to harm in unforeseen ways, but it is very highly likely indeed (for all practical purposes = 1). And for the same reasons as given for 2, I have not set P(~H|~W) equal to zero. It may appear that the difference between 2 and 9 is that the harms caused by targeting non-combatants will be foreseeable and limited – bombing raids over German cities in December 1940 will be enough to prevent Operation Sealion. But if it is true that this set the precedent for bombing German and

15 In 6 E is effective because the probability of E not being realised if W is carried out – Britain not being invaded, the Soviet Union not being defeated, etc. – is greater that the unconditional probability of E, which is in turn greater that the probability of E given W. It is, I think, obvious why this is a condition for W being effective. In 7, on the other hand, W makes no difference at all, and hence it is ineffective. By contrast in 8, not only does W make no difference, but it is also pointless, as the probability of E is approximately zero. I claim 8 represents the state of affairs of the British bombing of German cities. 16 And that is true also of the atomic bomb. It is true if the Manhattan Project is understood as aiming to produce the means to deter a Nazi bomb, and it is true if it is thought of as producing a means to engage Japanese military forces. Japanese cities throughout WW2 – which it surely did – in fact it turned out that the harms H were not limited and foreseeable – no one foresaw Hiroshima and Nagasaki in 1940.17 Moreover, if it true that the supreme emergency measures conducted in 1940 and carried on throughout WW2 were such as to make it more likely that similar measures have been, and will be, carried out since that time and by ‘civilised’ states, then there will be additional uncertainty about the nature and magnitude of H. The same, of course, is true for 9.

The War in the East

Turning now to the example, we should first note that WW2 was lost by Germany in the East (which I now capitalise), in its war with the Soviet Union. Operation Barbarossa, the invasion of the Soviet Union in June 1941, involved twenty four panzer (tank) divisions, many other motorised divisions and over two million German soldiers in all. Within two months, over a million Soviet prisoners were taken – and more died in that time period than the total combined losses of Britain and the USA in all theatres of the war – and the Wehrmacht was at Smolensk, only three hundred kilometres from Moscow. Between twenty seven and twenty eight million Soviet citizens died, according to the latest estimates, in the war as a whole. It is not, however, only the massive scale of the fighting that should lead us to see the Nazi invasion of the Soviet Union as representing a supreme emergency. It is rather what motivated the invasion, what its overall objective was, that is the ground for this judgement, something which came to be reflected in the character of the war. This supreme emergency was therefore a function of two related things: how the Germans conducted the war and what they intended to do when they won. Hitler was decisively influential in both matters. He had made public his views on what Germany needed to do to achieve its ‘destiny’ in Mein Kampf and this involved a shift of the focus of German expansion to the East, to ensure an adequate supply of raw materials and food for the ‘thousand year’ German Reich.

Hitler’s thinking was influenced by Germany’s defeat in WW1, which he, along with many others, saw as a defeat because of lack these vital resources. Alan Bullock, in an early biography of Hitler in 1952, claimed that the War in the East was the fulfilment of such long-held intentions, and Bell reports that this view has been confirmed forty years later by Jürgen Förster who has had access of much new evidence (Bell 2007: 336).18 The Bullock- Förster thesis does not mean that Hitler could not have had additional reasons for the invasion of the Soviet Union. In 1940 he believed that while Britain did not pose any military threat to Germany, he accepted that no invasion was possible; there was still a war in Europe and Britain still had to be dealt with, as it had a natural ally in the United States, and may well also have hoped that the Soviet Union would attack Germany. A swift defeat of the Soviet Union would cut of off any potential aid from that quarter, and would therefore force Britain to conclude a peace before the United States could become involved. The invasion was also in keeping with Nazi ideology, which saw the Slavic people as inferior and their political system, 17 The British pioneered the use of incendiaries to maximise civilian casualties, for instance in Dresden, and this practice was taken up by the US in the their bombing of Japanese cities after March 1945, see Grayling 2007: 72-77. 18 This viewpoint is not uncontentious. A vast amount has been written about the subject, from within the Soviet Union and East Germany, by West German scholars and by British and American historians, and there are disagreements both between and within the members of these groups. Over the general issue of the causes of WW2 there is a great deal of disagreement. communism, fundamentally opposed to National Socialism, as well as being fundamentally flawed. All this was overlaid with an extreme anti-Semitism, which saw Jews as controlling the Soviet state and being responsible for opposition to Germany all round the world. Given this general outlook, it is perhaps not surprising that the War in the East was conducted only in terms of ‘military efficiency’ and fought with uncompromising ferocity.19

The operational aim of Barbarossa was to comprehensively defeat the Red Army and drive any surviving elements back beyond the Volga river. It was thought that Soviet Asia could not provide the basis for a renewal of the Red Army, and that once the existing Soviet forces were defeated and the capital Moscow captured, the war would be won. Archangel, Leningrad, Moscow itself, the mineral-rich Donetz basin, the Caucuses oil fields and all the rich agricultural land of Western Russia, Ukraine and Belarus were then to be annexed into a new German empire and settled by ethnic Germans. The local population would have no civil rights and would be used for whatever purposes deemed necessary by the colonial authority. There were various sub-plots, so to speak, but this was the grand vision. Moreover, the ideology that served to justify the programme of colonisation informed the ideas of those who planned the war: they thought that the inferior Slavic peoples would be no match for the Wehrmacht, no match for the army that had easily defeated what was believed to be the far stronger French and British armed forces. So it was thought that the War in the East would be over in a matter of weeks. It was to be a total war, a total war in Ludendorf’s sense of a struggle, not just between opposing armies, but between nations, between peoples. Hitler talked of “more than a mere clash of arms; it is also a conflict between two ideologies…the striking down of the enemy armed forces will not suffice to bring the war to an end” (Stahel 2009: 97). It was soon apparent, however, once the war was underway, that the Red Army was not a pushover and that the war would not be over in a few weeks, in spite of Germany’s great victories in the border battles.

Germany lost the War in the East and so it might then be asked whether the plans to deprive millions of people of their rights and livelihood would really have been carried out. The evidence is that they most certainly would have been, at least by the leadership of the Nazi Party at the time, the SS and paramilitaries and the commanders of the Wehrmacht. We have, in the first place, the evidence of the activities of the Einsatzgruppen and the collusion of Wehrmacht generals in the killing of Jews, partisans, commissars and others. In the second place, operational directives for the way in which the war was to be conducted indicated that it was indeed to be a total war, without regard to any of the usual conventions and restraints. Specific orders were issued by the high command of the Wehrmacht before the invasion that were contrary to the laws of war but in accord with this concept of total war. The Commissar Order, for instance, required army units to execute without trial any captured Red Army Commissar, or indeed any 'Bolshevik element’, and the Barbarossa Directive decreed summary execution of any civilian who attacked a German soldier. The sense in which ‘attacked’ was interpreted to include non- combatants disobeying orders from German soldiers, while the sense of ‘executed’ allowed razing of whole villages and killing all its occupants (Stahel 2009: 100-101).20

19 This was, and was intended to be, a ‘total war’, even a total war in a special sense. 20 The Commando Order, issued in October 1942 directed that all enemy soldiers found behind German lines to be shot, but was not specific to the War in the East. These orders were carried out by virtually all the army units in Operation Barbarossa, in addition to the Einsatzgruppen and other paramilitaries, and they stemmed ultimately from Hitler. Also, the Wehrmacht was instructed to commandeer food supplies and anything else it wanted from the local population, without regard for their welfare.

There is no doubt that the Soviet Union faced a supreme emergency, in the sense intended by Walzer and in conformity with criteria 1 and 2, from the very moment when Operation Barbarossa began on June 22. The intention was to ‘ethnically cleanse’ those parts of the western Soviet Union that were to be used by German settlers. The Soviet state was to be destroyed, with its capital occupied and its resources stolen. A section of its population, the Jews and members of the communist party, were to be hunted down and killed. On anyone’s view about a supreme emergency threat, the one posed by Hitler and Nazi Germany qualified. I have suggested that most scholars would agree that this emergency lasted from June 22 1941, when Barbarossa opened, until November 23 1942, when the 6th army besieging Stalingrad was surrounded and hence doomed to defeat.21 Thereafter, the battle front stabilised and it was only a matter of time before superior Soviet numbers prevailed.22 Even before the outcome of the Battle for Stalingrad, it was not true that the Wehrmacht was everywhere successful and victorious. Although the Germans were far superior from the technical, tactical and operational standpoints, and were much better organised, the Soviet soldiers fought hard and bravely. Much more surprisingly, some of the Soviet tanks, the KV-1s and T-34s, were much better than the best panzers, being impervious to all but the largest German weapons. This led to a re- evaluation on the part of the German armaments procurers, but the results, the massive Tiger and Panther tanks, only appeared in 1943, far too late to make a difference (which demonstrates how long it takes to do ‘innovative’ WWR).

There were two important factors that hindered the progress of the German forces after the border battles. One was the lack of suitable roads, other infrastructure, and the geography of the Western Soviet Union, with its extensive marshes and great rivers. The second was confusion and disagreement about the overall aim of Barbarossa. There were, as a consequence, nine panzer divisions that were not allocated to the central front, and, had they been, it is possible that Moscow would have fallen. Army Group Centre, the largest of three army groups that took part in Barbarossa, reached the outskirts of Moscow in November 1941, fighting hard most of the way, especially around Smolensk. But in spite of over a million prisoners being captured and vast amounts of equipment, the crucial panzer divisions were themselves badly worn down, and never recovered to full strength. David Stahel’s recent study of the opening months of Barbarossa makes the controversial claim that these losses were such as to doom the whole invasion of the Soviet Union to failure as early as August 1941. His reasoning is that since the Wehrmacht failed to achieve their main operational aim before the winter, which was to destroy the Red Army as an effective fighting force, it would not win the war because the Red Army could renew itself while the Germany lacked the manpower and industrial potential to match what the

21 There are other ways to understand the nature and hence the duration of the supreme emergency, namely with reference to the genocide of the Jews and more generally to the systematic mistreatment of Soviet citizens for the whole of the occupation of the country. 22 There are many many factual accounts of what took place in the East, and I will not give references where the facts are well-known. Soviet Union could produce. The Soviet Union was greatly assisted in 1941 by its ‘traditional ally’, the Russian winter.23 Stahel’s claim is based on a close reading of German war diaries, kept at divisional, corps, army and army group levels, as well as by individual commanders. These reveal the losses of men and material, but also the doubts expressed by the commanders themselves. Stahel’s claim is, as I have said, controversial, but if it is correct, then the supreme emergency facing the Soviet Union was over by the end of August 1941. What is beyond doubt is that the last possibility for Germany winning the war came at Stalingrad in 1942, though whether success there would have won the war is still conjectural. After Stalingrad it was clear that Germany would eventually be defeated.

WWR and the Soviet Union’s Supreme Emergency of 1941-42.

The Soviet Union could not mount any bombing offensive against German non- combatants in 1941-42, and hence could not respond to the invasion by the measures available to Britain in 1940. But it could, and did, undertake WWR, and this we have agreed may also be a supreme emergency measure. However, if Stahel’s claim is correct and Germany could not defeat the Red Army after August 1941, then it seems that WWR was not necessary for dealing with the supreme emergency faced by the Soviet Union. The decisive weapons of the Red Army, the KV-1 and T-34 tanks, were not the products of WWR done during the course of the war: they were already available in June 1941. If Stahel’s claim is correct, then as a matter of fact WWR was not necessary for the Soviet Union to win the War in the East, and moreover it was surely not possible for the Soviet Union to produce war-winning weapons in just two months. New weapons were designed and produced during the war, as I will indicate in a moment, but it seems clear that the key to defeating the Wehrmacht was learning to use the existing weapons effectively. In this regard, it should be mentioned that the Red Army lacked experienced commanders because the majority of officers of general rank were purged in 1937, so it was necessary for their replacements to learn on the job. On the other hand, given the received view of the matter, that the War in the East was not decided until Stalingrad, then the timeframe available for conducting WWR that could make a difference is expanded to approximately eighteen months. Is that sufficient? I will assume this standard interpretation is correct, though we should keep Stahl’s thesis in mind.

Three examples will show how long it can take to bring a new weapon from design idea to the battlefield in the Soviet Union during and just before the war. The famous Katyusha multiple rocket launcher, ‘Stalin’s Organ’, was a simple but innovative design for firing a massive and noisy, though inaccurate, barrage of missiles. It was authorised for development in June 1938 for a rocket that was already available. It took two years before the basic model was delivered to the army, and further models were developed with bigger rockets up to 1944. The second example is of the Yakolev-3, or Yak-3, fighter. This was a sophisticated aircraft that could out-fight the Messerschmitt of the Luftwaffe. It was developed on the basis of existing aircraft by the same designer in 1941 but did not become operational until 1944, even though it was given priority – aircraft are more complicated and require more testing that rocket launchers (Nemecek 1986: 63). Finally, there is the AK-47 that took over 6 years to

23 The Battle for Moscow was lost because the German offensive had passed what Clausewitz called the ‘culminating point of the attack’ (Stahel 2009: 19). At this point, in essence, the initiative passes to the defense. produce. If we are allowed to generalise here, then it seems that in wartime and even with a great commitment of resources, it would be hard to come up with radically new weapons in fewer than two years. Does this therefore mean that WWR cannot qualify as a supreme emergency measure in this instance, and that we have, so to speak, been wasting time thinking about it? If all WWR takes a relatively long time, it would still not have been a waste of time discussing it, because it would have established that supreme emergency would not have been a reason for conducting WWR, or at any rate we would have need another example (and I do not think there are any).

Not all WWR, however, needs to address radically new designs; incremental improvement to existing systems, via ‘incremental WWR’, is easier and quicker. The T-34 tank was improved throughout the war and was in service with the Red Army until 1958. Some of these improvements, such as new turret hatches, improved air- filters and handrails welded onto the back for the famous ‘tank riders’, were done quickly and were accomplished before Stalingrad, while others, such as replacement of the 75 mm with an 85 mm gun took much longer (Grove 1977: 53). The incremental improvements may not seem like much, either as the outcome of WWR, or as things that would make much difference on the battlefield, but they did help. The simple expedient of a hand rail meant that support infantry with grenades and machine guns could ride with the tank. As for being the proper product of WWR, we have interpreted WR broadly to encompass any systematic attempt to improve weapons design, and so we can assume that these marginal improvements were the outcome of WWR. All this suggests that the following timescales are approximately correct: Significantly new weapons took at least 2 years to appear on the battlefield, from design to final product, in the Soviet Union in WW2. So any innovative WWR would, as a matter of fact, have taken too long to combat the supreme emergency. Incremental WWR, on the other hand, could be completed in less than a year and so could have made a difference to the outcome of the German invasion, though for it to have done so, the issue must have been very finely balanced. Thus, it can be said with confidence that WWR was not only possible within the timeframe of the supreme emergency of 1941-42, but that it was also conducted at least in relation to the T-34.

Suppose, then, that S will only undertake WWR is she believes that C is facing a supreme emergency and we assume that S is a Soviet citizen, though that assumption is not strictly necessary, and that C is the Soviet Union.24 If we ask whether S would have been in a position to know about the supreme emergency facing the Soviet Union, the answer will depend on who S is. The Nazi plan for the Western Soviet Union was secret and presumably even Stalin did not know about it. The conduct of the Einsatzgruppen and the Wehrmacht, however, quickly made it apparent and the nature of the war, a total war, would have been clear. So it will not even be necessary to regard S as an ideally well-informed agent for her to come to realise the nature of the threat to her country. The defeat of the 6th Army at Stalingrad was also well-known to the Soviet people, but the fact that the supreme emergency was over at that point might well not have been so clear. Even if it was, the need for S to make a decision as to whether to participate in WWR, we may suppose, was near the beginning of the war, let us suppose in 1941. So S could not have been in a position to decide just to work on small incremental improvements to existing weapons systems that would take less that a year and not on major innovations, because neither she, nor anyone

24 I have not expressed with reference to a justificatory schema, because of course it is a special example, supposedly unique. else, knew when the supreme emergency would be over. When it was over, she could have withdrawn her labour, setting aside practical problems as to whether this would have been allowed. The on-going character of the supreme emergency in the East thus gave ample scope both for incremental as well as more radical innovative WWR.

B. Are Supreme Emergency Measures Justified?

In order to follow Gert’s method for justifying a violation of a moral rule, it is necessary to determine what kind of violation it is, and, as we saw in Chapter 5, this involves determining the morally relevant features of the violation. Supreme emergencies and supreme emergency measures are, to say the least, highly unusual, and so we would not expect it to be a straightforward matter to apply the method. For this reason I will begin by looking at what Michael Walzer and others have written on the subject, bearing in mind that they have only considered the deliberate killing of non-combatants as a supreme emergency measure and have only considered one (not very good) example.25 There are clearly differences between deliberately bombing non- combatants and engaging in WWR (to incrementally improve existing weapons), but nevertheless, and to repeat, what WR does is to produce new ways of harming into the world and these means harm ‘non-combatants’ just as surely as does deliberately targeting them with bombs.26 It is worth emphasising that both measures, not just WWR, have on-going harmful effects. The bombing campaign of 1940 made it much easier to continue to kill non-combatants after the supreme emergency was over, perhaps not only in Germany and Japan but in Vietnam as well – the ongoing effects of WR have been amply documented.27 We can therefore assume that reasons against allowing the deliberate bombing of non-combatants will also be relevant to deciding if WWR is justified as a supreme emergency measures, though it is not so clear that reasons in favour of the former could count in favour of the latter. I will look first at what has been said about the topic by Walzer and Orend and by Igor Primoratz.

To begin, recall that even though the moral system that we have adopted allows for violations of rules against killing and other forms of harm, there are situations in which it seems that the violation cannot be justified. In a famous discussion of a similar issue, Thomas Nagel claims that “hostile treatment of any person must be justified by something about that person which makes the treatment appropriate … one consequence of this is that certain persons may not be subject to hostile treatment in war at all, as nothing about them justifies this treatment “ (Nagel 1972: 133, his emphasis). There was nothing about the (vast majority of) the million or so men, wo-

25 The ‘others’ are Orend and Igor Primoratz. We have seen that Orend’s views on JWT are close to Walzer’s, so he is an obvious choice here. Primoratz takes a different position, so it is useful to contrast this with Walzer and Orend. Others still have written on the supreme emergency exemption, though again mostly without identifying a suitable example. I will touch on some of these accounts also. 26 The reader may, even after all that has been said, disagree. It may be pointed out that while WR often does produce the means to harm that are used to harm innocent people in unforeseeable ways, and that weapons researchers must acknowledge this and must therefore seek to justify their work, this is not inevitable. It is not certain that this will happen. In response to this, I would say that targeting non-combatants is not certain to kill them either, and that this issue is allowed for by the probability assessments of expressions 5. and 9. These imply that P(HǀM) = P(HǀW). It makes no difference to the argument is the former is taken to be slightly larger than the latter. 27 Nathanson is one critic of Walzer who sees allowing supreme emergencies measures in the case of Britain in 1940 as stepping onto a slippery slope that leads to all manner of situations being classed as supreme emergencies and hence leading to widespread violations of moral rules, Nathanson 2006: 23– 24. men and children killed or injured in the bombing campaign against Germany that justified that treatment.28 There are further implications of this willingness to mete out hostile treatment to those who have done nothing to deserve it: we can ask whether there are any limits to supreme emergency measures. For instance, there were foreign nationals interned in WW2, including Germans in the Isle of Man in Britain, as well as Japanese in camps in California. Suppose Churchill had believed that public hanging of several German internees per day would be effective for interrupting the planning for Operation Sealion, would this measure have not been on a par with the bombing? The question is not about its effectiveness, but whether it is essentially the same kind of violation of individual rights. I am unable to see any difference, for there is nothing about either group that makes them deserving of that treatment. But once we begin to look at the matter in this way, it is hard to see what could be ruled out as a supreme emergency measure once the state of innocence of the victim does not count as a decisive reason for not acting. The only reason not to act is that the proposed measure, whatever it is, is thought not to work. What, then, is the end that justifies such terrible and seemingly unlimited means?

Dirty Hands, Moral Tragedy and Moral Disaster

The answer is that it is not merely an ‘undifferentiated’ collection of individuals that are supposed to be saved by supreme emergency measures, but a way of life of a people. Walzer has made this communitarian foundation of supreme emergency expli- cit:

The commitment to continuity across generations is a very powerful feature of human life, and it is embodied in the community. When our community is threatened, not just in its present territorial extension or governmental structure or prestige or honor, but in what we might think of its ongoingness, then we face a loss that is greater than anything we can imagine, except for the destruction of humanity itself (Walzer 2003: 43)

Nothing else could possibly justify that killing of innocents, save some sort of ‘higher value’: innocents are to be killed to save other innocents who will not only be killed, one assumes, but whose very way of life is to be extinguished. This may go some way to explaining the seemingly unbounded nature of supreme emergency measures. As we have seen, Walzer does not, however, conclude that the decision to enact the measures in question is an easy one, or that those who make the decision are clearly and straightforwardly justified, and that it is obviously the correct decision. He is deeply worried about killing innocents, but nevertheless thinks that should be done, and the decision can only be made by statesmen responsible for, and who represent, the community under threat.

It emerges clearly and explicitly in Walzer’s later writing that the people who have the ‘moral duty to violate a moral duty’ are only those who are acting on behalf of their community, and where the issue is not the lives of one group of individuals versus those of another, but rather the community as a whole, lives set in the context struc- tured by enduring relationships. And this makes all the difference.

28 One might recall that the literal sense of the term “innocent” is “not having done harm”. A moral person will accept risk, will even accept death, rather than kill an innocent. But a moral president or prime minister or military commander will not accept the risk or the fact of communal death (Walzer 2004: 41).

Walzer talks about how these leaders represent the community and that the community has special value which is more that the sum of the individuals making it up. He defends this position by denying that it makes a ‘fetish’ out of the community and asserts that the community is something of special and irreplaceable value, unlike the state that represents it, and, moreover, that moral communities make great immoralit- ies possible (Walzer 2004: 50). The statesman therefore has a special responsibility, over and above that of the ordinary citizen, to protect not merely a group of individuals but the community itself.

Orend thinks that Walzer’s position is ‘somewhat paradoxical’

Walzer’s advice to statesmen in a supreme emergency is that you must set aside jus in bello …even though this will result in horrible wrongdoing …you have a duty to get your hands dirty…This is coherent advice, but still somewhat paradoxical: you have an important moral duty to violate another important moral duty; you have the right to do something that is not right (Orend 2006: 154).

The advice is indeed paradoxical, as Walzer himself admits, but what does it mean to be then 'left with dirty hands’? Walzer introduced the notion of dirty hands into the literature of political science in 1973. In 2004 he made it clear that the decision to enact supreme emergency measures leaves the statesman with dirty hands, but what does this mean, and in particular is there some special sense in which the action is thereby not merely explained but justified? Dirty hands is the outcome when a statesman is put in a position where all the options for acting (and omitting to act) are such that there is no choice but to do something that is morally wrong – that much is clear, he must be, there is no alternative. But this is nothing more than a re-statement of what it is to be faced with a supreme emergency, and unless there is something more to the notion of dirty hands, something which shows that in such circumstances, even though what is done is morally wrong, it is nevertheless permissible, the issue will re- main unclear and problematic.29 Moreover, since one assumes that not every course of action is permissible, we would like to know why certain of the morally wrong options are permissible and others not. So to say that statesmen and leaders are left with dirty hands does not provide any clear moral evaluation of the outcome of enacting the measures.

Another possibility is that there exists a kind of role responsibility, or ‘role morality’, associated with those in authority in the community whose exercise permits certain acts that would otherwise be morally unjustified. We are familiar with the idea that certain occupations bring with them specific responsibilities, and these are normally responsibilities to act in the interests of certain groups of people in virtue of special expertise.30 But while role responsibility can justify certain acts that would otherwise 29 237 Primoratz thinks that it is not clear what is gained by talking here about dirty hands because this does not explain what is distinctive about supreme emergency, Primoratz 2011: 377. 30 Role responsibility, or any kind of ‘forward-looking responsibility’ is such as to make agents who have such responsibility accountable for certain omissions, namely, those that they are obliged to perform in relation to the role. In many instances this explains why agents can be responsible for what be morally impermissible, such as are familiar in medicine, those acts are restricted to those that involve the client or patient, not some third party. The suggestion here is that the role responsibility of statesmen can entail the violation of moral laws or rights with respect to those are innocent.31 This suggestion raises, in turn, certain further questions. One set of questions asks why it is that the community, ‘the way of life’ , has special extra value, over and above the sum of its members and attracts role responsibility. Another set ask about how it is that statesmen come to have this special responsibility to protect the communities and why it is that they are able to violate the rights of other individuals not in the community. Neither set of questions is easy to deal with, though Walzer himself has offered some answers. Nevertheless, I think this represents the clearest exposition we can give of the dirty hands explanation of the supreme emergency exemption, even if it means that we have to accept that the role responsibility of statesmen is sui generis. Tony Coady, however, rejects what he sees here as ‘pro-state bias’. He asks why should the political community, and the state which represents it, survive in a supreme emergency when other groups do not (Coady 2008: 191). It cannot be denied that the fate of the political community is bound up with the fate of the state – they stand and fall together. Coady’s question is certainly worth asking when the state in question is the Soviet Union. And we may also ask whether any state facing extinction - including Nazi Germany? - is justified in enacting supreme emergency measures.

Brian Orend’s own position on supreme emergency has two parts: first of all he spe- cifies what conditions must be met before one can act on a supreme emergency, and second, he gives his account of the supreme emergency exemption. The second part distinguishes two different responses to the threat: a ‘prudential’ response, a response that amounts to the recognition that this is a struggle for survival, and a moral response. The first part comprises certain rules of prudence that must be satisfied before one can act. The last of the five rules is the most important and demands that the measures taken have a reasonable probability of success, where this is understood to mean that they will prevent the threat being realised, hence that the measures will actually do some good. I will not discuss these rules any further. As to the second part of his account

From the moral point of view, a supreme emergency is a moral tragedy. A moral tragedy occurs when, all things considered, each viable option you face involves a severe moral violation....On this understanding there is no supreme emergency exemption, where such is conceived of a moral exemption, permis- sion or loophole. (Orend 2006: 155)

Orend claims that his account therefore differs from Walzer’s in two respects: it em- phasises the fact that there is no morally justifiable action in such circumstances, and (as a result) dispels the air of paradox surrounding Walzer’s discussion - Orend does not appeal to any communitarian premise to provide ‘extra moral weight’ to the option of taking the supreme emergency measures – and it explores the prudential or self-preserving response to the situation. The latter amounts to the idea that when they do not do – I have discussed these matters at length in Forge 2008. So if leaders do have this kind of obligation, then this explains why it is that it can be morally wrong for them to fail to act. Where there is no such responsibility, there is no obligation to act and hence no blame for not acting. 31 It might be thought that culpability therefore also attaches to the role, in some way, and that the person acting out the role does not himself have dirty hands. I believe that this is a mistake, and have discussed the reasons why elsewhere, see Forge 2008: 213-214. S has no role responsibility. faced with elimination or extinction, it is prudent, or even natural, to adopt a course of action that saves one’s skin.

We need to look at the idea that a supreme emergency, a ‘real’ supreme emergency, one that satisfies our three criteria, is a moral tragedy. It looks as if Orend understands a moral tragedy to be a species of moral dilemma, not merely of moral conflict. In his discussion of supreme emergency, Igor Primoratz reminds us of the difference between moral conflicts and moral dilemmas: while both confront the agent with choices that both entail moral wrong-doing, in the former but not the latter one can distinguish between greater and lesser evil, and hence have a basis for choice on moral grounds. But no such basis for choosing is available for moral dilemmas (Primoratz 2010: 381). So if an agent is in a moral dilemma through no fault of her own - she happens to be the leader of her country in a supreme emergency situation – then she cannot be blamed for whatever course of action she takes, because whatever she does is (equally) wrong. Orend then makes the following claim “Owing to this duress [of being forced to adopt immoral measures] we can excuse the victim’s actions” (Orend 2006: 157); the ‘victims’ here are the likes of Churchill and his advisors, not the innocent German civilians. However, Orend adds that this does not justify the actions of those people.32 A moral tragedy, on this interpretation, is such that the agent has an excuse, and is thus not liable for blame or punishment, but no justification is available for the particular course of action that she adopts. There is no doubt that supreme emergencies give rise to moral conflicts at the very least, but do they (always) entail moral dilemmas? Orend thinks they do, and this is why his ‘solution’ has to appeal to what is prudent, and that is to enact the supreme emergency measures. So his conclusion is the same as Walzer’s but he arrives at it by a different path.

Primoratz’ recent contribution to the issue is helpful in a number of respects, but I will restrict myself here to what he says about supreme emergency and ‘moral disaster’. For Primoratz, the extermination or enslavement of an entire people or the ethnic cleansing of a land amounts to a moral disaster, in view of both what they are and their irreversibility.33 These are, I assume, moral disasters because of the extent or degree of the wrongness of what is done: they are worse than killing a group of individuals. When considerations of civilian immunity are set against the value of the ‘ongoingness’ of a people - Primoratz talks of ‘people’ rather than states or political communities - then this “prospect may put deliberate killing of civilians on the agenda” (Primoratz 2011: 384). By ‘on the agenda’ he means that this course of action can indeed to adopted as the morally correct choice, so we are no longer faced with a moral dilemma, but with a moral conflict. Primoratz claims that his concept of a moral disaster is therefore structurally similar to the supreme emergency. I don’t think that it is, if we understand the latter to be something that satisfies all of our criteria, number 3 included.

A people who are subject to enslavement or extermination will not normally have the means to violate civilian immunity, to be able to resist by means that violate jus in bello.34 Keeping with the example of WW2, it was the Jewish people who faced ex-

32 A distinction is being made here between second-order and first-order moral judgement. 33 I am not confident this is clear from Igor Primoratz paper, but he has made it clear to me that he sees both of these actions as moral disasters 34 Primoratz’ maintains that his idea of a moral disaster is neutral between whether the people in question have the means to fight back and kill enemy non-combatants or not. I think that in all cases of termination and the Slavic people of Eastern Europe who faced enslavement. The Slavic people could fight back in the sense that some were citizens of the Soviet Uni- on, and the Red Army could engage the Wehrmacht, though, as I have noted, there was no offensive capability to bomb German cities and kill non-combatants until 1945. The Jewish people themselves had no army at all, because they were not a state. The extermination of a helpless people raises the question of humanitarian intervention, which is an important and controversial topic, but it must be stressed that that is a different topic from the one at issue here. It is different because that issue is, or would be, clearly structurally dissimilar to a supreme emergency: C’s people are being persecuted or exterminated by B and A can only intervene by killing certain of B’s innocent civilians – though that it is by no means the usual form, or even one that has ever taken place or would ever take place, of humanitarian intervention. It is dissimilar because A’s leaders have no special obligation to C’s people to engage in moral wrong-doing and no basis for discrimination in favour of C’s innocent people as against those of B.

To summarise, we can therefore distinguish the following positions on whether actions that violate the moral rule on ‘hostile treatment’ of innocent people - deliberately killing and otherwise harming them - can be justified:

A. Such action is morally justified when the fate of a political community is at stake and those who lead the community must decide whether or not to enact supreme emergency measures. Those leaders will be left with dirty hands. (Walzer)

B. Such action is morally justified when the ‘ongoingness of a people’ is at stake and a moral disaster threatens. (Primoratz)

C. Such action is not morally justified when the fate of a political community is at stake. While it is a moral tragedy, the decision to enact the supreme emergency measures can be justified on other (prudential) grounds. (Orend).

We now need to ask whether any of these positions can also be applied to WWR and used to justify S’s participation in WWR in the face of the supreme emergency to the Soviet Union in 1941-42, or help us to come to a decision about whether such action amounts to a supreme emergency exemption..

Justification of WWR and the Soviet Union’s Supreme Emergency of 1941-42.

We have assumed that S is a citizen of the Soviet Union, although that assumption will not in fact be necessary for any justification of her participation in WWR. But we assume S is not Joseph Stalin, or a member of Stavka or occupies any other leadership role that conveys some special responsibility for the protection of the Soviet Union and its people. S has no reason to be partial in any such respect, to have any duty to protect Soviet citizens or groups of Soviet citizens as opposed to any other ‘non- combatants’. It follows that any justification that appeals to the kind of role responsibility identified in relation to Walzer’s or Orend’s positions on supreme emergency measures has no application here. For instance, individual moral agents moral disaster thus far, the people have not had the means to fight back and I think it highly unlikely that they ever would be able to. never find themselves left with dirty hands because they are not obliged to make the kind of choices and decisions that leaders have to make. Individual moral agents are not obliged to decide that innocents are to be killed to preserve the community; individual moral agents are allowed to decide not to make, abide by or participate in such actions and decisions. The fact that those who decided to enact supreme emergencies measures were leaders is necessary for A, for the justification of that decision; take this away and the decision is no longer justified.

Without the ‘extra moral weight’ provided by the role responsibility of leaders to protect their community, A looks not too much different from C, the view that supreme emergency situations are moral tragedies in which neither enacting the measures nor refraining from enacting them is morally justified. However, we saw that in coming to his conclusion, Orend took account of the fact that those who had to make the decision were leaders, as Walzer did, though he disagreed with Walzer about how much this counted. For Orend, even taking account of this was not enough to ‘tip the balance’ in favour of moral justification of the measures. Now we take it away, and consider the situation of S who is not a leader but simply a moral agent, and ask what she should do. Should we then expect Orend to conclude that there is no longer a moral dilemma here but a moral conflict, and a moral conflict in which there is sufficient reason for S not to act? This presupposes, as I have been doing, that WWR is a supreme emergency measure on a par with the deliberate killing of non- combatants, and that moral reasons and justifications for or against the latter can be considered in relation to the former as well. If all that is the case, then I do not see why we should not conclude that the reasoning employed by Orend is such as not to allow WWR as a supreme emergency measure: if A becomes assimilated to C when it comes to WWR, then C reduces to something resembling argument 2 from Chapter 9.

B does not presuppose that S has some special role responsibility and hence the reasons Primoratz gives for the enacting supreme emergency measures should apply to WWR unchanged, providing again that the presupposition that WWR is on a par with the other measures holds. Primoratz was concerned to make sure that the threat amounted to a true moral disaster, and not just a threat of invasion or defeat on the battlefield. At stake is the ‘ongoingness of a people’, and we surely cannot deny that this kind of moral disaster did threaten the people of the Western Soviet Union at least. For Primoratz, in such circumstances, the killing of innocents is ‘on the agenda’, and hence it seems that so is conducting WWR. I do not however intend to look again at the reasons and arguments that he advances, because there is really no more to say about them. Primoratz believes that the continued existence of a people, with all that implies about the continuity of traditions, memories and way of life, justifies killing other innocent people, perhaps up to the point to which their ongoingness becomes threatened. There is, I think, not much more that can be said about this that would be helpful: we could explain and discuss why these things are so important, but I do not think that would clarify and explain the reasons why the killing of innocents, or the conduct of WWR, is on the agenda. And it would not help decide who is right if we were to deny that these things should be on the agenda. There is no escaping the fact that these matters are very hard to deal with and we find ourselves here at the limits of moral reasoning – no wonder there is talk here of moral tragedy and moral disaster. We are at liberty at this point therefore to disagree with Primoratz, taking sides with what one assumes would be Orend’s position, and deny that WWR is justified, for all the reasons given in this book. These conclusions assume that our example if similar in all relevant respects to those discussed in A-C, with the exception of S’s having a leadership role. But there are three considerations which suggest that our example is different, and we need to see what bearing, if any, these have on any final judgement about the justification of WWR. First of all, our’s is a genuine example of a supreme emergency: it satisfies all three criteria, which is not true of the example discussed by the Walzer et al. In the second place, WWR as a supreme emergency measure is different from targeting civilians: WWR takes longer, but it seems to have a greater chance of success in the end. Finally, the War in the East was a war between two kinds of political system, and victory in that war would be a victory for the political system in question as well, Soviet-style socialism or Nazi-style fascism. Primoratz denies that his position has any pro-state bias and that he is not discussing the continued existence of a state but of a people. However, in practice, and certainly in this example, the people cannot be ongoing in any sense unless there is some state which represents them and fights for them. War is a matter for states, and hence any supreme emergency that arises in war is something that has be dealt with by states. It was the Soviet state that authorised WWR and it was Britain as a state that bombed Germany in 1940. In practice and to repeat, neither the political community nor the people themselves can be separated from the state.

The preservation of the Soviet Union, as opposed to its people, was hardly a worthy cause. Were it not for Hitler, Stalin would stand unchallenged as the most evil despot of the twentieth century, and, as it is, a comparison with Hitler is certainly possible.35 For example, Stalin waged war on his own people in the 1930s by collectivising agriculture via a programme of systematically depriving those in the productive areas of the Western Soviet Union of food. Elliot estimates that ten million people died as a result from 1932 to 1936; some of starvation, others by bullets and still others in labour camps (Elliot 1971: 40). This was the same territory that was to be colonised by Germany, and has been called Bloodlands by Timothy Snyder in a book of the same name in view of the terrible suffering of the people unfortunate enough to live there between 1930 and 1945 (Sydner 2010). It is also true that Stalin continued to mistreat his own people, including captured Soviet soldiers, after the war. And when Stalin had the opportunity, he allowed German and other Axis prisoners and non- combatants to be very badly treated, in much the same was as Soviet soldiers and civilians were mistreated by the Germans.36 This was not always only in reprisal during and after the war: some twenty two thousand Polish officers were killed by NKVD, the Soviet secret police, in 1940 before Barbarossa and after Poland was partitioned under the Molotov-Ribbentrop Pact. After the war, the Soviet Union retained control over all the lands that it occupied – the Warsaw Pact countries - setting up repressive regimes there. After the death of Stalin and the seemingly more liberal leaders that followed, the gulags and persecution of minorities, like the Chechens, continued. All this is of course well-known. While we can acknowledge that the people of the western Soviet Union were not be identified with the Soviet state and preserving them was indeed a worthy cause, were S to engage in WWR to

35 As was done by Alan Bullock in his Hitler and Stalin: Parallel Lives. Mao and Pol Pot would, in other centuries, stand unchallenged for the this title. 36 For instance, it is estimated that only about 5000 German prisoners out of some 90,000 taken at Stalingrad survived. Then there were the murders and rapes committed by the Red Army in Germany. And after the war there was the setting up of the highly repressive East German state. that end she would also have aided the Soviet state, the very institution that had previously killed so many of those people.

We should therefore acknowledge that WWR undertaken in order to prevent the Nazis from colonising the Western Soviet Union and killing or enslaving the inhabitants will not only give rise to new ways of harming, but will give support to a regime known to wage war on its own citizens, to make it, in the end, even stronger. In this regard, it is worth mentioning that the T-34, one of the main weapons that won the War in the East, continued in service with the Red Army until the late 1950s. It was used, along with that other product of WWR in the war, the AK-47, in the suppression of the East Germany uprising in 1953, and the Hungarian Revolution of 1956. T-34’s were used by foreign armies as well, with one Serb T-34 tank attacking a British peacekeeping outpost as late as 1995 – a long, long way from Stalingrad. The T-34 was the forerunner of the next generation of Soviet main battle tanks. For instance, work started on the T-54 as early as 1944 at the Stalin Ural Tank Factory 183 and it officially entered service in 1946. This tank, after many improvements, and the later T-62s were mainstays of the Red Army and other Warsaw Pact armies, and elsewhere besides, including the Republican Guard armoured divisions in Iraq. S could not, of course, have foreseen any of these uses. But, as before, we assume that S knows about the kinds of things that eventuate as a consequence of WR, namely that innocent people are harmed by its products. And in this case, overlaid with the usual unforeseeability issues, is the fact that WWR is done for a regime where such activity would normally be something that all impartial rational persons would agree should not be done.

All of these considerations amount to morally relevant features of the violation of the rule not to engage in WR. To put them into perspective, I will compare and contrast our example with three other scenarios that contain different but comparable sets of morally relevant features

1. Suppose the WWR undertaken to help C stave of the supreme emergency is known to be effective (P(E|W) ≈ 1), it is known that this will have no harmful future consequences (P(H|W) ≈ 0) and C is not a totalitarian state.

2. Suppose the WWR undertaken to help C stave of the supreme emergency is not known to be effective (P(E|W) ≈ ?), it is known that this will have harmful future consequences (P(H|W) ≈ 1) and C is not a totalitarian state.

3. Suppose the WWR undertaken to help C stave of the supreme emergency is not known to be effective (P(E|W) ≈ ?), it is known that this will have harmful future consequences (P(H|W) ≈ 1) and C is a totalitarian state.

4. Suppose the WWR undertaken to help C stave of the supreme emergency is known to be unnecessary or impossible to carry out in time (W is irrelevant to E), it is known that this will have harmful future consequences (P(H|W) ≈ 1) and C is a totalitarian state.

It is clear that everyone would asset to WWR being justifiable under scenario 1. But 1 denies UT because it states that the WWR is known to have no future harmful effects, and UT is a well-supported premise of the case against WR. So although everyone would allow WWR under 1, 1 is an idealisation, and certainly not a representation of the example under discussion, nor of any other genuine example. Scenario 4, by contrast, is one under which no one would allow WWR. In addition to the standard argument against WR, there is also the fact that it will not aid the innocent persons who are confronted with the supreme emergency because the measures are known to be ineffective (because they cannot be completed before the supreme emergency is over), and in addition it is being conducted on behalf of a totalitarian state. If David Stahel is right, then 4 does represent the situation in 1941. So unlike 1, there is some evidence that 4 could represent a genuine example of a supreme emergency. Moreover, for any supreme emergency that is relatively short-lived, let us say half a year or less, we can suppose that WWR would not make a difference, and hence no one would allow WWR on such a scenario, regardless of whether the state under threat was a totalitarian one. But while it seems clear what the judgement would be about scenarios 1 and 4, it is not so clear what we are to make of scenarios 2-3.

Under 2 we do not know that W will be effective, but we do know that it will have future harmful effects – these are the assumptions that are best supported by our overall understanding of the effects and impacts of WWR. While 2 does not represent our example because the Soviet Union is a totalitarian state and on 2 C is not such a state, it is worth including because it raises the possibility of upholding the prohibition on WR even in view of a supreme emergency faced by a state that is not a totalitarian state, and whose continued existence, as a stronger and more formidable member of the international community, is not a reason against engaging in WWR. So what do we make of 2? I suggest it resembles Walzer’s example, with C standing for Britain. It resembles it because the precedent of bombing German cities had harmful future consequences, in terms of bombing other cites and killing other non-combatants, as we have noted, and it resembles it because the efficacy of the measures was uncertain. Notice, however, that while the efficacy of the bombing was not known to be effective at the time, which we represent by (P(E|M) ≈ ?, that there would be future harmful consequences in terms of further bombings of German cities was also not known in the sense that the estimated probability was approximately 1, rather we set (P(H|M) ≈ ?. Such bombing campaigns had not be conducted extensively before 1940. Had this been known, then this would have counted against implementing the measures, and it would have been another good reason why Walzer and Orend would have not endorsed the decision.

Walzer deplored the bombing of German cities that took place after the supreme emergency was over and he deplored the bombing of Japanese cities. Had it been clear that the bombing campaign of 1940 would be the first step on the slippery slope that led the fire-bombing of German cities in 1944 and 1945, to the firebombing of Japan and to Hiroshima and Nagasaki, then he may have taken a different approach and denied that the bombing was permissible. 2 does therefore resemble Walzer’s example, but I suggest that it amounts to a weaker case in favour of the supreme emergency measure, because, unlike the bombing in 1940, WWR is known to have future harmful effects - as usual, we set (P(H|W) ≈ 1. I suggested that when we subtract whatever ‘moral weight’ the fact that the person who has to make the decision about whether to enact the supreme emergency measures has a responsibility to the community as a leader from the ‘moral balance’, then it seems that position A reduces to position C, which sees the situation as a moral tragedy with each course of action being equally morally wrong. Now there is another reason to think that 2 represents a weaker case for the supreme emergency measures, namely the fact that UT applies when it comes to WR, but that there was no such principle or precedent for the 1940 bombing campaign. If our comparison of WR to offensive bombing is apt, then I now see grounds for thinking that 2 presents an even weaker case than C for enacting the measures.

3 represents our example: the difference between 2 and 3 is that under 3 the state that S is working to protect is a totalitarian state, and the presumption is that, all other things being equal, such states should not be supported in any way. The reason for this, of course, is that such states do not respect the rights of their citizens who are not protected by the rule of law. Under 3, not only is C a totalitarian state, it is the Soviet Union, one of the most repressive states ever to exist. One might argue here that, whatever the circumstances, working to preserve and protect the Soviet Union is always morally wrong, but we do not need to make this assumption in order to address 3. If it is accepted that WWR is not justified under 2, then it will also be agreed that it is not justified under 3. And the fact that now C is the Soviet Union is an additional reason not to under take WWR. There will be a correspondingly even greater degree of reluctance to allow the violation under 3. We will be (even more) reluctant to allow the violation because, whenever a regime is faced with a supreme emergency, regardless of the character of that regime, it would then be publicly allowed to undertake WR to protect itself. Supreme emergencies do not threaten states per se, on our understanding of what counts as a supreme emergency – they threaten people – but, as we have noted several times, it is states that have armed forces that can react to such threats and hence the preservation of the state is a precondition for dealing with the threat. To allow 3 amounts to allowing the preservation of all kinds of states, regardless of their nature, to adopt supreme emergency measures to protect themselves, and that is surely an unacceptable consequence. All in all I do not think WWR in support of the Soviet Union in 1941 - 1942 was morally justified.

Conclusion

Walzer refers to the Nazis and what they planned to do as an ‘ultimate threat’. This seems to suggest that the supreme emergency for those faced with this threat - the peoples of the East but not the British - were confronted by something unprecedented, something unique. An emergency of this kind, by its very nature, prompts the possibility of responses which themselves may be unique: breaches of moral rules that are never (otherwise) to be violated, such as the deliberate killing of civilians, are permitted, as are other extreme acts. There may have been other national emergencies, but this one was qualitatively different, promising 'immeasurable evil’. Looking at the example in this way, it might be thought not too much of a concession to allow WWR, to grant an exception to the case against WR without further ado. I am not convinced that the supreme emergency faced by the peoples of the East was unique. The effects of colonisation, in some instances at least, caused more deaths, certainly as a proportion of the local populations, than did the invasion of the Soviet Union, though we have no way of knowing how many deaths there would have been had the Nazis won the war. What the Nazis did, and what they intended to do, was quite extraordinarily and horrifically bad, but it was not unique. However, those who have faced supreme emergencies, during European colonization for instance, were not able to fight back. So the claim that we have here something sufficiently unlike anything else in history is about the threat and the response. So to concede that WWR be allowed here would appear to be a one-off concession, the recognition of a unique situation.

Walzer makes it clear that he thinks the supreme emergency posed by the Nazis was uniquely terrible, but we have seen that even so he is reluctant to endorse the deliberate killing of non-combatants. I have argued that the grounds for WWR on behalf of the Soviet Union in 1941 were weaker than those for that bombing campaign. I therefore suggested that relative to Walzer’s position, position A of the section before last, we have a better case against WWR. This case against WWR does not need to be make relative to Walzer’s, or Orend’s or Primoratz’ positions, but these comparisons are helpful when we come to finally decide whether or not there was justification in this instance, or whether the case against WR admits of no exception. Indeed, at this point it is finally up to the reader to make up his or her mind. I repeat that my aim all along has been to argue that there are always reasons not to undertake WR. These reasons always make reference to the fact that WR introduces new ways of harming into the world and the agents who produce the knowledge that makes this possible cannot know if the products of their work will, on the whole, be used to prevent, reduce or minimise other unjustified harms. Wherever and whenever WR is undertaken, those reasons always hold and the argument always applies. It applies to this example too: there are, or there were, good reasons not to undertake WWR between June 1941 and November 1942 on behalf of the Soviet Union.