When an army invades a country, the invaders break a massive number
of that country’s laws. They kill, commit assault and battery with
deadly weapons, recklessly endanger lives, and destroy property, and do
all this as part of a concerted conspiracy. And they break all sorts of
more minor laws, by carrying unlicensed weapons, trespassing on
government property, littering, and presumably violating traffic laws
all the time (I assume one can’t slow down the progress of a column of
tanks by putting up a stop sign).
This means that there is an intermediate position between just war
theory and complete non-violence. This intermediate position holds that
law enforcement can appropriately make use of violent means, including
lethal violence when this is proportionate, and that when one’s country
suffers an unjust invasion, one may (and maybe often should)
legitimately engage in appropriately violent law enforcement activities
against the enemy. Call this the law enforcement model of war.
I do not advocate the law enforcement model, but it is interesting to
think just how it would differ from the two more standard options.
The difference from complete non-violence is clear: on the law
enforcement model, violent action in defense of the country’s laws is
permitted whenever proportionate. Thus, it would be permissible to
destroy a tank because it is a part of a conspiracy to commit murder and
destruction of property, but not because it is simply refusing to stop
at a stop sign. (And discretion being the better part of valor, issuing
traffic tickets in the latter case is probably not a good idea.)
The differences from just war theory are also significant, though
more nuanced. While in most cases where traditional just war theory
permits a defensive war, the law enforcement model would also permit
defensive violence, there would be significant limitations on offensive
wars, due to the fact that law enforcement is bound by significant
limitations of jurisdiction. While on traditional just war theory, the
fact that Elbonia is violently persecuting a Kneebonian ethnic minority
on Elbonian soil might be a sufficient just cause for a war, on the law
enforcement model, execrable as such persection is, it is likely to be
outside of the proper jurisdiction of Kneebonian state law enforcement.
Indeed, there may have to be significant limits to extraterritorial
defensive operations, though some version of the doctrine of “hot pursuit” may
be helpful here.
Interestingly, the law enforcement model in one respect seems to
point to greater violence. The presumption in law enforcement
is that criminals are not only stopped but also punished. This suggests
that on a law enforcement model, we would have a presumption in favor of
putting all captured invading soldiers on trial. However, even in
ordinary law enforcement, punishment is only a presumption, and
it can be waived for the sake of significant public goods. In the
special case of defending against invaders, having a general waiver,
with exceptions tailored to mitigate the worst of evils (say, attacks on
defenseless populations), in order to encourage the enemy to surrender
would be prudent.
In regard to the waiver of criminal penalties, it is interesting to
note one difference between how we feel about war and about ordinary
crime. In the case of ordinary private crime, we do not feel that it is
qualitatively worse when the criminal murders a civilian rather than a
police officer—indeed, we tend to feel that there is something
particularly bad about murdering a police officer. In the case of war,
however, we do feel that it is much worse to kill civilians. On the law
enforcement model, this difference in attitudes does not seem right. But
the difference can still be defended within the law enforcement model.
In typical cases, soldiers fighting an unjust war are subject to
incessant propaganda that they are fighting for justice. There is thus a
significant probability that they are not culpable for killing enemy
soldiers, because they are rationally convinced that justice requires
enemy soldiers to be stopped with lethal force. But it is much harder to
come to a rational conviction that justice requires enemy civilians to
be stopped with lethal force. Therefore, even if in an unjust war the
intrinsic wrong of killing soldiers is just as great as that of killing
civilians, there is a significant difference in likely culpability.
As I said, I do not endorse the law enforcement model. But I think it is an
interesting model. And I think it presents a significant challenge to
those pacifists who think that law enforcement violence is sometimes
justified but that violence in war never is.