In the wake of the President’s decision not only to pardon three war criminals, but also to go to the wall in reinstating one to his previous rank and then promising to campaign with him, I feel like it’s worth interrogating what we might call “Folk Theories of the Just War.” I’ll admit that I’m inspired to do this by reading Facebook comments in favor of Trump and Gallagher, even as I appreciate that Facebook comments stand above only Youtube comments at the very bottom of human discourse.
Nevertheless, it remains the case that the President was motivated to pardon and then embrace the war criminals, and that this action has won him great acclaim in a certain sector of the electorate. I do not think that this is simply a consequence of identification with Trump; rather, I think that Trump is aware of and has tapped into pre-existing beliefs about jus in bello, the rules that guide just action within war. I think we can identify two folk theories of the jus in bello that explain why Trump’s pardon of the three criminals has evoked such a positive reaction among some supporters. Both of these theories are logically coherent, and while they are mutually compatible they are not necessarily connected to one another.
The first is what we might refer to as the American Exceptionalist defense of war crimes. In short, this argument runs that the United States has a (usually divinely inspired) historic mission, and as such it is not possible for Americans to commit war crimes. This perspective rejects both Morgenthau’s argument that no particular state can usefully be identified with morality in the international sphere, and Walzer’s argument that connecting jus ad bellum and jus in bello is fundamentally mistaken. If Americans do it, it’s not a war crime; whatever may *look* like a war crime (the firebombing of Tokyo, the massacre at Mai Lai, Abu Ghraib, etc.) was simply the necessary consequence of Americans interacting with a fallen world.
I should hasten to add that there are plenty of American Exceptionalists who do *not* hold to this view, and that it would be a mistake to describe it simply as the American Exceptionalist Understanding of the Just War. Lots of American Exceptionalists believe (rightly or wrongly) that exceptionalism is confirmed by performance of jus in bello and jus ad bellum, which suggests a much different relationship between America and the Just War. I wouldn’t say that this is quite the dividing point between conservative and liberal American Exceptionalists, but it’s one of the big differences.
The American Exceptionalist position is not incoherent; from a certain set of priors it makes complete sense. The problems are obvious, however, as the United States is hardly the only country which perceives itself to have a unique historical mission. Practitioners of international law and scholars of the Just War tend to reject exceptionalist arguments for obvious reasons.
The second logic involves reciprocity, and runs as follows; jus in bello rules should only apply when both parties to a conflict are conforming to a set of mutually agreed (at least implicitly) restrictions on conduct. The logic of reciprocity largely guided state behavior in jus in bello for a very long time, at least until World War II. Protections for Japanese prisoners of war should only be respected insofar as the Japanese protect our POWs; we should refrain from bombing German civilians only insofar as the German refrain from bombing our civilians. In the current context, this means that protections of ISIS POWs only extend to the level of the courtesies that ISIS extends to its own prisoners, which is not very far at all.
Despite its long historic pedigree, practitioners of international law and just war theorists have tended to reject reciprocal understandings in favor of quasi-absolute rules. In part this is because of the experience of World War II, in which reciprocal understandings helped produce a series of tit-for-tat escalations that led to utter barbarism in China, on the Eastern Front, in the Pacific, and over the skies of Germany. But this merely means that reciprocity has failed in some critical respects, not that it is either illogical or incoherent.
Obviously, both of these folk theories of the Just War contradict the norms and rules that have developed after World War II in both the Just War traditions and the Law of Armed Conflict. With respect to the former, Walzer’s Just and Unjust War (I know some people hate Walzer, but I don’t care) is reasonably clear that jus in bello responsibilities ought to be absolute, without regard to reciprocity or to jus ad bellum. There is some tension between just war theory and practical approaches that focus on the Law of Armed Conflict (LOAC), but on this point they are largely in accord. Moreover, US domestic law and the Uniform Code of Military Justice generally conforms with, and has informed, the LOAC approach.
In sum: what Trump appreciates with his pardons of the war criminals is that many Americans continue to hold to one or the other of these two theories of behavior in war, and consequently are inclined to excuse any war crimes that Americans commit, particularly in the course of conflict with ISIS and ISIS-related groups. This runs counter to the legal and theoretical approaches to justice in war that have developed over the last 75 years, and that guided the prosecution of the three war criminals that Trump is now embracing. While there is no question that the adopting these folk theories of just war would be disastrous for the US and for the world, there’s also little reason to think that Trump will pay any price for doing so.