Utilitarian vs. Humanitarian: The battle over the law of war

Parameters, Summer, 2002 by Eric S. Krauss, Mike O. Lacey

American soldiers "are not just warriors, they are humanitarians." (1)

Former Secretary of Defense William Cohen

A battle rages over the future of the law of war. It pits those who must plan and fight wars against those committed to reducing the suffering caused by war; it is a battle between the utilitarians or warriors, on one side, and the humanitarians on the other. The outcome of this battle may determine the future course of US defense, foreign, and security policy. It will certainly affect the legitimacy of our use of force. It will definitely affect our influence in the world.

The law of war has developed and will continue to develop driven by two radically different perspectives, that of the utilitarian or warrior and that of the humanitarian. (2) These two schools of thought have long battled for preeminence among policymakers, the political elite, and the society that they both serve. Unfortunately, each side views the other as the enemy. It may be only a slight oversimplification to suggest that the utilitarian sees the humanitarian as intent upon shattering the national defense, while the humanitarian views the utilitarian as unconcerned with the killing of innocent civilians.

From the beginning of the recorded history of combat, the rules regulating the conduct of warriors on the battlefield have been written by the utilitarians for the warriors. As recently as 1977, there were only limited challenges to the military professionals making the rules that determine what tactics, weapons, and conduct were considered acceptable on the battlefield. The utilitarians, responsible for the survival of the state or the monarch, were able to ignore or at least overrule any humanitarian voices raised in opposition to their development of the law of war. The minority humanitarian opposition was poorly organized, had little access to public opinion or policymakers, and was often viewed as a threat to the security of the state or to the lives of the soldiers protecting the state.

In recent decades, however, the tide has begun to turn. The humanitarians are now taking the lead. Unless those who profess to take the side of the warrior take notice, there is a serious risk that the utilitarian's perspective will be increasingly ignored, with potentially dire consequences for the power and influence of the United States.

A significant number of influential conservative figures continue to deny the effective existence of international law, let alone the law of war. (3) Those conservatives who do recognize the actuality of international law warn against the undue influence of nongovernmental and international organizations on the national security of the United States. Regardless of these views, however, there can be little doubt of the growing influence of actors outside the government of the United States. In addition, there can be no doubt of the failing influence of the United States in relation to such organizations. (4)

The law of war does indeed exist. (5) Denial of its existence or the extent to which it affects combat operations is foolish. Resistance to its study and application to our operations is counterproductive. In order to triumph, the US Army must advance the cause of the law of war, and in order to advance this cause, members of the US Army must participate in the development and enforcement of the law of war. To do otherwise is to surrender the initiative to groups and states whose interests may be antithetical to our nation's.

To understand the full scope of the conflict it is necessary to study the dual purposes of the law of war through history, the relationship between the two, and the present state of affairs. Doing so will reveal the nature and effects of this conflict between humanitarians and warriors.

Historical Basis

The conflict between humanitarians and utilitarians in the law of war is nothing new. The Old Testament of the Bible describes several instances in which humanitarian values contradict the mission orientation of the utilitarians. Various passages from the Pentahcuh instruct the Israelites to slay their conquered enemies' women and children. (6) Later books approach the same problem from a humanitarian perspective and instruct the King of Israel to show mercy to his captives. (7)

Similar conflict existed between the utilitarian warriors of Sparta and the humanitarian Athenians of ancient Greece. After accepting the surrender of the besieged city of Platea, the Spartans not only executed the men for their cowardly act, but took the women as slaves. (8) The Athenians, however, developed a list of a dozen rules of engagement, one of which forbade the execution of captives. (9)

The utilitarian/humanitarian conflict was also present in the early Catholic Church. The same Church that sanctioned the utilitarian concept of Saint Augustine's just war (10) displayed its humanitarian side by attempting to restrain violence by restricting the use of certain weapons, such as the crossbow (although one might see such efforts as being matters of preemptive defense). Though the motivation to restrain violence was prompted primarily by concern over intra-Christian warfare, important expressions of noncombatant immunity evidence the continued concern leaders had for the simple sake of humanity. These Church efforts in conjunction with the rise of a professional warrior class of knights led to the Age of Chivalry.