Conceptualizing combatant subjectivity

“Subjectivity” in everyday usage refers to the quality of being subjective (e.g., based on a personal opinion). In phenomenology and the analytic philosophy of mind, it refers to the first-person perspective from which something is experienced and which gives that experience the quality of “for-me-ness”.Footnote ⁸ In social theory, it is often used to denote one’s consciousness of oneself as a subjectFootnote ⁹ and is therefore closely related to the notion of “agency” of a person in the sense of their “freedom of subjectivity” or “possibility of intention”.Footnote ¹⁰ Using the term in these senses here, “combatant subjectivity” refers to the ability of the combatant to reflect on themselves and to act freely on their own volition. “Active” combatant subjectivity as used in this article describes the relatively stronger ability of combatants to do so, while “passive” combatant subjectivity as used in this article describes the relatively weaker ability of combatants to do so because of constraints that may be external (e.g. threat of sanction by an external institution) or internal (e.g. self-abdication of judgement). This conceptual framework of combatant subjectivity and the spectrum between its relative activity and relative passivity will be used to uncover the presuppositions underpinning two different approaches to influencing individual combatants’ conduct. One approach prioritizes the incorporation of norms of IHL into military orders, policies and instruction (law-driven approach) as the main effort for influencing combatant behaviour because of the limit to using persuasion to modify combatants’ attitudes, as further elaborated in the following subsection on “Relatively Passive Combatant Subjectivity Envisioned by the Law-Driven Approach”. The other approach advocates the internalization of moral values as a more durable way of promoting restraint (morality-driven approach), as further elaborated in the subsection on “Relatively Active Combatant Subjectivity Envisioned by the Morality-Driven Approach” further below. These two approaches are not mutually exclusive, and it is common for armed forces to adopt elements from both. The two approaches nevertheless retain important analytical distinctions that reflect different visions of how individual combatants experience the role of IHL during combat. These distinctions will be further nuanced in the last three subsections of this section.

Relatively passive combatant subjectivity envisioned by the law-driven approach

The International Committee of the Red Cross (ICRC) led the Roots of Behaviour in War study (RBW) that was published in 2004.Footnote ¹¹ This study drew on empirical research that found widespread moral disengagement,Footnote ¹² depersonalizationFootnote ¹³ and lack of autonomyFootnote ¹⁴ among individuals engaged in warfare to illustrate individuals’ tendency towards group conformity and their obedience to authority.Footnote ¹⁵ It also drew on psychological literature to illustrate the normalization of standards of behaviour previously considered immoral in a “moral inversion” whereby “killing victims becomes a just and morally defensible act”Footnote ¹⁶ when individuals abdicate from their own initiatives and accept the definition of legitimate action supplied by an authority perceived to be legitimate.Footnote ¹⁷ Thus, “[w]ithout denying that individuals have the capacity to act in accordance with the dictates of their conscience”, RBW “admitted that ordinary men who have become combatants are, in certain circumstances, moved by other parameters”.Footnote ¹⁸ It therefore counselled influence strategies designed “not to persuade free individuals of the need to adopt types of conduct in conformity with IHL but to convince more or less structured and hierarchically organized groups to respect these norms”.Footnote ¹⁹ Its concrete recommendation was the integration of legal norms and sanctions into military orders, policies and training,Footnote ²⁰ with a focus on changing behaviour rather than altering attitudes to promote IHL compliance:

In RBW’s vision, individual combatants have relatively passive subjectivity; they are “moved by other parameters” than their own conscience, and merely “carry out orders” in “structured and hierarchically organized groups”.

Relatively active combatant subjectivity envisioned by the morality-driven approach

RBW has been criticized by Dale Stephens for giving undue emphasis to formal law and its incorporation into the military command while ignoring the importance of appealing to the moral judgement of individuals on the battlefield.Footnote ²² The latter critique was taken up by the Roots of Restraints in War study (RRW), also led by the ICRC and published in 2018 as an update of RBW:Footnote ²³

RRW did not explicitly theorize or engage with the subjectivity of combatants involved in armed conflicts, possibly because it borrowed its conceptual framework from socialization theory – specifically a framework developed by Checkel originally for the socialization of international institutions in EuropeFootnote ²⁵ and later transplanted to the socialization of violence.Footnote ²⁶ Based on research that adopts “middle-range” approachesFootnote ²⁷ and brackets ontologies,Footnote ²⁸ Checkel’s theoretical framework envisaged three types of socialization: type 0, temporary norm adoption following instrumental calculations of punishment or reward; type 1, learning and following norms in order to conform to group expectations and behaviour; and type 2, full internalization of norms which become part of the individual’s identity – the “right thing to do”.Footnote ²⁹ The key divergence of RRW from RBW on the recommended influence strategy based on this theoretical framework nonetheless indicates the RRW’s implicit view on combatant subjectivity.

In contrast to RBW’s de-emphasis of moral persuasion to influence combatants’ attitudes, RRW, while acknowledging that integrating the law into doctrine, training and compliance mechanisms increases restraint on the battlefield, took the view that “[a]n exclusive focus on the law is not as effective at influencing behaviour as a combination of the law and the values underpinning it”.Footnote ³⁰ RRW thus advocated “value-based motivation”Footnote ³¹ through internalization of norms of restraint, ultimately to the point of these norms becoming part of the combatants’ identity, particularly in “decentralized counter-insurgency warfare, where units operate far from commander oversight and the legal enforcement mechanisms of higher command”.Footnote ³² In case studies of integrated State armed forces in Australia and the Philippines, RRW credited “organizational identity, ‘warrior’s honour’ and ethical behaviour” for allowing Australian and Philippine soldiers to internalize norms of restraint, “encouraging IHL compliance to a degree not possible through enforcement mechanisms alone”.Footnote ³³ In case studies of centralized non-State armed groups in Colombia, RRW assigned significant weight to the deep processes of preference and personality transformation of the Revolutionary Armed Forces of Colombia – People’s Army (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo, FARC-EP) and National Liberation Army (Ejército de Liberación Nacional, ELN) in inculcating “revolutionary morality”, the influence of which over the fighters was illustrated by the low incidences of rape, a crime punishable by death according to the armed groups’ rules.Footnote ³⁴ In case studies of decentralized non-State armed groups in Mali, RRW attributed the relative restraint of Ansar Dine to the group’s community links and the moderating voices of local Islamic law judges.Footnote ³⁵

While both RBW and RRW acknowledged that self-motivation, in the form of “personal conviction”Footnote ³⁶ or internalized values,Footnote ³⁷ is more durable, the two diverged over the priority to be accorded to it. RBW deprioritized it not only because of doubt over the moral autonomy of combatants but also because “values represent a broader spectrum which is less focused and more relative”, thus giving rise to the law-driven approach.Footnote ³⁸ The opposite conclusion by RRW to appeal to individual combatants based on their ethical values implies the contrary vision that individuals can have moral autonomy to act on internalized or identity-based values which are not as unfocused or relative as they are portrayed to be in RBW, thus supporting the morality-driven approach alongside the law-driven approach.Footnote ³⁹ The following subsection will further study and nuance the divergence between the law-driven approach and the morality-driven approach by examining the drivers of combatant behaviour envisaged by RBW in light of the socialization theory developed by Checkel and adopted by RRW as its conceptual framework.

Drivers of combatant behaviour under RBW – external or internal?

Although RRW did not explicitly associate RBW’s recommendations with type 0 socialization, RRW’s frequent association of RBW’s recommendations with the “threat of punishment” or “enforcement mechanisms”Footnote ⁴⁰ may suggest precisely that. Yet associating RBW’s recommendation with type 0 socialization would be a mischaracterization, as instrumental calculation of punishment or reward was featured only in one section towards the end of RBW,Footnote ⁴¹ which gave much more weight to combatants’ blind obedience to a perceived legitimate authority and their acceptance of the definition of action supplied by the latter, in contrast to the behaviour of strategic calculation to avoid punishment:

In other words, while RRW interpreted RBW’s portrayal of passive combatants as being driven by external factors, be they the threat of punishment or enforcement mechanisms, RBW actually emphasized passive combatants as being internally motivated by the inclination to “accept the definition of the action supplied by the legitimate authority” in an “ideological abdication”.Footnote ⁴³ This divergence may be traced to the under-explored insight that norms, whether legal or non-legal, could be primordially constitutive of an individual combatant rather than subsequently learnt and internalized by a preformed individual combatant – i.e., the norm forms the subject itself.Footnote ⁴⁴ This insight is not adequately captured by Checkel’s theoretical model of socialization borrowed by RRW.Footnote ⁴⁵

The internal motivation to “accept the definition of the action supplied by the legitimate authority” in an “ideological abdication”Footnote ⁴⁶ emphasized by RBW is somewhat similar to, yet distinguishable from, the type 1 socialization theorized by Checkel. Type 1 socialization involves role-learning to conform to group expectation according to the “logic of appropriateness”,Footnote ⁴⁷ but putting RBW’s vision of combatant subjectivity into this category would short-change RBW’s portrayal of the combatant’s attitude of “obedience” to an authority presumed to be legitimate.Footnote ⁴⁸ At the same time, RBW’s vision of combatant subjectivity also bears similarity to, yet remains distinguishable from, the type 2 socialization theorized by Checkel. Type 2 socialization involves the combatant’s judgement of an action as “the right thing to do” based on their “identity”,Footnote ⁴⁹ but putting RBW’s vision of combatant subjectivity into this category would exaggerate the combatant’s agency by attributing to them a judgement that the ideologically abdicated are incapable of making. Apparently falling into the gap between type 1 and type 2 socialization, it might be tempting to characterize RBW’s vision of combatant subjectivity as “type 1.5 socialization”. Yet the very language of socialization and internalization may misdescribe the kind of combatant subjectivity initiated and formed through the powers circulating in the systems of legitimated violence, the norms embedded in which are immanent in the subject rather than “internalized” as such.Footnote ⁵⁰ In other words, the obedient ideological abdicator envisaged by RBW is missing in Checkel’s typology of socialization because the latter does not adequately take into account those combatants who are none of the rational calculators, appropriate norm followers or judges of what is the “right thing to do” based on their identity as discussed above, but who are self-willed puppets on a string.

The following subsection will seek to conceptualize and analyze these nuanced drivers of combatant behaviour envisaged in RBW through a phenomenological lens in order to more vividly articulate combatants’ experience of these drivers.

A phenomenological model of combatant behaviour under RBW

The kind of subjectivity sketched in RBW is in fact commonplace in many other, less extreme spheres of life, where the experience of legal compliance has been extensively theorized in both mainstream legal theory and the phenomenology of law. The most anodyne example may be found in H. L. A. Hart’s model of how people comply with the law from an internal point of view based on an implicit acceptance of its legitimacy.Footnote ⁵¹ Hart observed that people stop at the red traffic light not, or not primarily, because they fear sanctions – as maintained by advocates of John Austin’s model of law as commands imposing duties backed by the threat of sanctionsFootnote ⁵² – but because they accept the law as a legitimate (not moral) basis for demanding or criticizing certain conduct.Footnote ⁵³ To the legal phenomenologist Paul Amselek, this experience reveals the intersubjectivity between individual law-appliers and the law. In this intersubjectivity, law appears to the law-appliers like a familiar tool appears to a craftsman, as part of his habitual body:

The Austinian model of law has faced much objection precisely because its view of the law, wherein the law is an outer object which confronts the individual as an inner subject who chooses to comply out of fear of sanctions, does not accord with the lived experience of legal compliance. Within this lived experience, the law and its individual law-appliers form part of, and exist meaningfully in relation to, one coherent system in which the familiarity of the law “obviates the necessity of reflective, positing acts of a legal consciousness”.Footnote ⁵⁵ William Hamrick thus used the well-known rule that “ignorance of the law is no excuse” to illustrate not a requirement for people to have theoretical knowledge of the law, but the requirement for an “internal working familiarity with the system which characterises the consciousness of those members of society who do accept the rules for doing or abstaining from doing certain things”.Footnote ⁵⁶ It is for this reason that “a red traffic light can appear to a motorist as a reason for stopping without the additional requirements that he or she know all of the provisions of the motor-vehicle code”.Footnote ⁵⁷ Hart termed this the “internal aspect of the law”, in view of which “violation of a rule is not merely a basis for the prediction that a hostile reaction will follow [i.e., sanctions] but a reason for hostility”.Footnote ⁵⁸ RBW’s disclaimer of “the authority-subject pairing … as a relationship in which a superior imposes a line of conduct on a reluctant subordinate by force” and its insight that “[t]he subject accepts the definition of the situation supplied by the authority and so conforms willingly with what is expected of him”Footnote ⁵⁹ particularly resonate with an intersubjective model of law whereby “leaders and other citizens all belong to each other, such that no one either commands or obeys absolutely”.Footnote ⁶⁰

This phenomenological model of combatant behaviour further nuances the perceived dichotomy between “law” and other social meaning structures such as “ethical values”, as further elaborated in the following subsection.

Nuancing the dichotomy between law and ethical values

The lived experience of legal compliance in combatant behaviour, as conceptualized in the previous subsection, significantly nuances the dichotomization between law and other social meaning structures, such as ethical values, because legal rules are experienced not as pure abstraction but as having meaning only in terms of the living social relationships to which they refer.Footnote ⁶¹ In other words, law is not experienced as independent and separate from other living institutions of a society, none of which are “closed” but all of which are in relation and confluence with each other.Footnote ⁶² Despite RRW’s comparison between law and “values” as two parallel sources of influence through their respective normative content,Footnote ⁶³ at least in the context of IHL, they so closely inform and define each other that their distinctions as sources of influence are often not easy to discern. The empirical findings used by RRW to support the conclusion that “ensuring that the values [which the law] represents are internalized seems to be a more durable way of promoting restraint”Footnote ⁶⁴ in fact reveal many equivalences between the law and other social norms where these values are found, making it hard to pinpoint which of them has been internalized in order to generate more durable restraints. In the survey experiments among the Australian and Philippine armies, the law has been found to be similarly influential to combatants as peer opinion.Footnote ⁶⁵ The illustration of “moral influence” among FARC-EP and ELN fighters, the prohibition on rape, has law-like features such as the express statement of the prohibition in rules backed up by sanctions (death penalty).Footnote ⁶⁶ Likewise, the influence of Islamic law featured heavily in the socialization mechanisms of the Ansar Dine armed group.Footnote ⁶⁷ Given the significant overlap between the content of IHL and other political, religious or social norms, unless a combatant is unusually obsessed with the precise source of a norm when observing it, it is hard to distinguish whether compliant behaviour is driven by one source of norm rather than another.Footnote ⁶⁸

An understandable strategy is to deploy all norms, be they legal or ethical, to influence combatant behaviour – but it is unclear whether, when RBW initially invoked the term “values” a number of times,Footnote ⁶⁹ those invocations were meant to juxtapose “values” against “law” as different categories of normative content per se, or to juxtapose authentic, moral self-inquiry against rule-following as different mental processes of the combatants.Footnote ⁷⁰ If one adopts the latter interpretation of RBW, its conclusion was not so much that it “opposed invoking moral values” or “advocated for a formalistic adherence to orders, discipline and hierarchy”Footnote ⁷¹ because of their different normative contents. Rather, RBW’s conclusion was that relying on combatants’ authentic, moral self-inquiry rather than rule-following is not only of limited effect because of combatants’ widespread moral disengagementFootnote ⁷² and obedience to authority,Footnote ⁷³ but also entail risks of abuse because values are more easily relativized.Footnote ⁷⁴ The following two sections will examine more closely, through the lens of existential phenomenology, the experiences of passive and active combatant subjectivity respectively, in order to illustrate the limits of the morality-driven approach and to uncover its inflationary risks.

Combatants’ loss of sense of individuality, self-awareness and conscience

Combatants’ passive subjectivity is often reflected in their experience as “functionaries”.Footnote ⁷⁵ In his autobiographical work The Warriors,Footnote ⁷⁶ the existential philosopher Jesse Glenn Gray gave a phenomenological account of his experience as an American intelligence officer on the European front during the Second World War, describing how individual combatants lose their sense of self-identity, ego and personal fateFootnote ⁷⁷ in the collectivity of comradeship, the mechanical technicalities of military organisms and the existential absurdity of the combat conditions.Footnote ⁷⁸

Gray described not only the psychodynamics behind military group cohesion but also its corrosive effect on combatants’ sense of individuality. The atmosphere of violence, threat and fear in which combatants are situated creates a “confraternity of danger and exposure” that turns them into each other’s “means of security and survival”.Footnote ⁷⁹ This forges a facially “utilitarian and narrow” but ultimately no less passionate link among diverse individuals precisely because of the “accidental and general character” of their shared experience in facing the threat of destruction.Footnote ⁸⁰ It liberates them from their “individual impotence”, expands their “boundaries of the self” and gives them “a sense of kinship never known before”, a “union with [their] fellows”Footnote ⁸¹ and a bond stronger than familyFootnote ⁸² or marriage.Footnote ⁸³ This union has an intoxicating quality,Footnote ⁸⁴ as “death becomes in a measure unreal and unbelievable to one who is sharing his life with his companions” and immortality is no longer remote or otherworldly but a “present and self-evident fact”.Footnote ⁸⁵ This explains why self-sacrifice for comrades can be relatively easyFootnote ⁸⁶ and why “the determination not to let down his comrades” can often be the sole reason that sustains a combatant’s participation in the war when its purpose becomes obscured.Footnote ⁸⁷ It is this liquidation of individuality in comradeship that induces the combatant’s feeling that “he must surrender in a measure to the will of others and to superior force”.Footnote ⁸⁸

The intensity of combatants’ individual awareness is also dampened and dulled by the “routine of military life, the repetition, drill and uniformity of response”.Footnote ⁸⁹ Gray found it “astonishing how much of the business of warfare can still be carried on by men who act as automatons, behaving almost as mechanically as the machines they operate”.Footnote ⁹⁰ The combatant’s predisposition to “[make] everything into an instrument, himself included”,Footnote ⁹¹ may yet point to a more fundamental condition in war: existential absurdityFootnote ⁹² magnified in wartime, from which the denial of self-consciousness serves as an escape.

Gray observed how “[i]n mortal danger, numerous soldiers enter into a dazed condition in which all sharpness of consciousness is lost” as they lose their individuality either through communal ecstasy or automaticity, preoccupying themselves with the mechanics of action so that larger issues of their lives never enter into their thoughts and “self-awareness is dimmed to the vanishing point”.Footnote ⁹³ This becomes an easy route for the combatant to escape the pain of thinking deeply about the absurd situation of war in which they find themselves:

Gray connected this denial of self-consciousness with the suppression of conscience, the discarding of freedom, the abdication of responsibility and ultimately the numbing of guilt from not standing up for one’s own conscious beliefs. He noted that “a troubled conscience is the first indication of guilt” and that the person who hears the call of conscience is conscious of their freedom and with it, responsibility – hence, “conscience is … in the first instance a form of self-consciousness”, and “an important function of guiltiness is to make us aware of our selves”.Footnote ⁹⁵ Yet, everything in warfare conspires against the combatant’s response to the call of conscience, their self-consciousness being overwhelmed or eclipsed by the consciousness of the others, the collective and the communal, with whose fate their own has become inextricably tied:Footnote ⁹⁶

The combatant is often a “semiconscious accomplice” to this conspiracy, as reflection risks the “dangerous isolation” that self-awareness can bringFootnote ⁹⁸ – but the combatant can also make a conscious escape from their conscience via the claim that they are acting “under orders”.Footnote ⁹⁹ Recognizing that combatants are obliged to distinguish between legal and illegal orders, Gray nonetheless observed that “in reality under the conditions of total war few things are more difficult to distinguish”.Footnote ¹⁰⁰ Shrouded in existential uncertainty about the future, “[m]ost soldiers in wartime feel caught in the present so completely that they surrender their wills to their superiors and exist in the comforting anonymity of the crowd”, and they “let the conscience sleep”.Footnote ¹⁰¹

Structural integration of IHL as a shortcut to combatants’ pre-reflective self-consciousness

It is against this particular mode of combatants’ consciousness that RBW’s recommendation to integrate IHL into military training, policies and ordersFootnote ¹⁰² should be understood as a means not to promote “formalistic adherence”Footnote ¹⁰³ as a bureaucratic measure, but to build a direct shortcut to combatants’ pre-reflective self-consciousness (which remains pervasive in people acting without reflective self-consciousness)Footnote ¹⁰⁴ by making IHL-compliant conduct a matter of routine action without the need for conscious self-reflection (from which many combatants tend to seek escape). Those combatants who are aware of their actions merely as subjective experience, rather than reflecting upon them as “objects”, possess what is known in phenomenology as “non-objectifying” awareness of their actions. Edmund Husserl described this in the following terms:

In other words, experience is conscious of itself without being the intentional object of consciousness.Footnote ¹⁰⁶ A parallel account of this pre-reflective self-consciousness can be found in the philosophy of mind:

Where combatants are acting in this mode of pre-reflective self-consciousness, as they often are in the exigencies of war, they are simply not in a state in which they would reflect on themselves in action. In Aron Gurwitsch’s interpretation, “all these acts are impersonal in the sense that the subject in his dealing with the object, aware as he is of this dealing, is nevertheless in no way aware of his ego”.Footnote ¹⁰⁸ At the very least, “experiences in which objects are constituted also involve an awareness of themselves as experiences, without it being necessary that such awareness constitute[s] those experiences as objects”.Footnote ¹⁰⁹ Jean-Paul Sartre discussed a similar concept of “pre-reflective cogito” which constitutes the consciousness directed toward the world and not toward itself.Footnote ¹¹⁰ John Drummond conceptualized “[t]he self-awareness that belongs to the temporal flow of ‘immanent’ contents” as a mere “numerical identity” of that flow.Footnote ¹¹¹

The association of combat in warfare with pre-reflective self-consciousness involving only a non-objectifying self-awareness, a pre-reflective cogito or a “numerical identity” can be corroborated by the widely observed phenomenon of human automaticity in warfare. Neurobiological research shows that while our sympathetic and parasympathetic nervous systems ensure a healthy balance in ordinary circumstances, stress such as that experienced in combat triggers the sympathetic nervous system to switch the body to an “automated” mode.Footnote ¹¹² Human beings’ inability to engage their more reflective modes of self-consciousness in order to self-judge under stressful situations can also be evidenced by the Milgram experiment.Footnote ¹¹³ In that experiment, participants recruited under the guise of a research programme led by an authoritative figure obeyed orders to conduct various cruel acts on the research subjects (who were, unbeknown to the participants, play-acting) “under the pressure of the circumstances” such that “[m]any people were unable to realize their values in action and found themselves continuing in the experiment even though they disagreed with what they were doing”.Footnote ¹¹⁴ As observed by Stanley Milgram, “the individual [can] become so absorbed in the narrow technical aspects of the task”,Footnote ¹¹⁵ particularly where the task is broken down into sub-tasks,Footnote ¹¹⁶ “that he loses sight of its broader consequences”Footnote ¹¹⁷ which can only be seen on self-reflection. Therefore, the recommendation by RBW – which engaged extensively with Milgram’s findings – to incorporate IHL into training, orders and policiesFootnote ¹¹⁸ is best understood as an effort to provide an antidote to the lack of self-reflection of combatants during hostilities by hardwiring IHL into the military command structure and thereby creating a shortcut to their pre-reflective self-consciousness.

Of course, this mode of pre-reflective self-consciousness of the combatant is not constant or immutable, and can be broken off. Despite all the factors in war that conspire against it as outlined above, reflective self-consciousness, moral inquiryFootnote ¹¹⁹ and answering the call of conscienceFootnote ¹²⁰ are all possible among combatants, whose subjectivity can become fully active and who may cease to act as mere functionaries and instead become free and full subjects capable of self-reflection on “who we are”. The next section will examine this alternative experience of the combatant.

Combatants’ existential freedom to be “who we are”

Critics of the law-driven approach have often used terms like “identity”Footnote ¹²¹ or “not who we are”Footnote ¹²² to denote the self-assertion by combatants of their own value judgement in hostilities, in contrast to rule-following by combatants who lack autonomy.Footnote ¹²³ It has been shown in the preceding section that combatants’ autonomy is often curtailed on the battlefield; this section broaches the more fundamental, underlying question of what we mean by “autonomy” or “freedom” to be “who we are” in light of the philosophy of Sartre, whose existential conception of freedom holds that freedom comes with existenceFootnote ¹²⁴ and cannot be dispensed with. In this existential view, human beings, including combatants, “are not free to cease being free”Footnote ¹²⁵ but are “condemned to be free”.Footnote ¹²⁶ As “man being condemned to be free carries the weight of the whole world on his shoulders”,Footnote ¹²⁷ Sartre also attributed to combatants “absolute responsibility”Footnote ¹²⁸ for the wars in which they participate:

On this view, the many factors sketched in the preceding section that conspire against combatants consciously reflecting on the exercise of their freedom do not detract from the fact that combatants do possess and exercise, even if unconsciously, their existential freedom. As Sartre claimed absolute ontological freedom of the human – there is always a choice, no matter the circumstances – self-denial of this freedom by escaping from the self-awareness of its many attendant possibilities is branded by Sartre as “bad faith”.Footnote ¹³⁰ It is important to emphasize that Sartre was not claiming that combatants actually operate in their reflective mode of self-consciousness, conduct moral inquiry or answer to the call of their conscience, only that they are capable of, and should be, doing so; in fact, Sartre’s major critique was that too many people fall into “bad faith” and fail to make conscious use of their existential freedom. Thus, these insights in existential philosophy are not per se sociological evidence of combatants acting either as functionaries or as the self-reflective “who we are”. However, by peering into these deeper notions of freedom and authenticity, existential philosophy does shed important light on what combatants’ conscious exercise of their existential freedom may entail for IHL compliance.

The radicality of existential freedom

Existential freedom found earlier expression in the conception of the human by Martin Heidegger, who argued that unlike the objective presence of other life forms or inanimate things, an “is”, the subjective existence of human is a “to be”,Footnote ¹³¹ in the sense that human life does not live itself but must be “led” or “completed”, not as a normative duty but as an inexorable feature of existence. Conceptualizing human existence as a “task” means that “existence” is an “issue” for every human being,Footnote ¹³² or in Sartre’s words, “a being such that in its being, its being is in question in so far as this being implies a being other than itself”Footnote ¹³³ because of the fundamental indeterminability of the human. Sartre illustrated this point with the dizzying experience of someone walking on a narrow path along a precipice without a guard-rail:

The exercise of human freedom is in this sense groundless – in reflecting on one’s causes for action, the causes are already objectified and thus become ineffectual:

Such illusive “causes” for action may include one’s “self-identity”, for “[t]otal, constant sincerity as a constant effort to adhere to oneself is by nature a constant effort to dissociate oneself from oneself”.Footnote ¹³⁶ Put differently, adherence to an “identity” is an act of alienation from one’s existential freedom because it is not one’s “identity” that determines what one does, but the other way around: it is what one does that determines one’s so-called “identity”, which is never static.

Combatants’ self-conscious exercise of existential freedom on the battlefield

Existential insights thus highlight the unpredictability of the consequences of the self-conscious exercise of the existential freedom of combatants when they are out of the mode of pre-reflective self-consciousness that prevails among command-based functionaries in passive subjectivity and enter into the mode of conscious reflection of “who we are” in active subjectivity. Despite the many factors in warfare that grind down the individual self-consciousness of combatants, annihilatory violence, such as that seen in the air raid on Gray’s unit that inspired his description below, can shatter combatants’ inhibitions, thereby laying bare their existence and initiating

Thus, while it is a well-known phenomenon that harmless individuals can, in a crowd, let themselves be drawn into acts of atrocity,Footnote ¹³⁸ Gray discerned an intensely individual dimension in what he called the “delight in destruction”, which, unlike the yearning for communion, cannot be so easily channelled into other alternatives to warfare for satisfaction.Footnote ¹³⁹ This delight in destruction among combatants is “something that stirs deep chords in their being” when they “step over the line that separates self-defense from fighting for its own sake, as it is so easy for them to do” in war.Footnote ¹⁴⁰ Gray disagreed with the characterization of this destructive impulse as a regression to primitivism and animality,Footnote ¹⁴¹ and argued that it is a distinctly human phenomenon, “devilish in a way animals can never be”.Footnote ¹⁴² He observed that combatants experienced the ecstasy of destruction when being “overpowered by it, seized from without”, not in the sense of losing themselves and their egos in the union with comrades or dissolution of the self–world barrier, but “precisely in greater consciousness of themselves” in their magnified individuality.Footnote ¹⁴³ On this account, the “evil” of wanton wartime destruction need not always be banal because of the perpetrators’ inability to think,Footnote ¹⁴⁴ but could also be radical by their spontaneous choice.Footnote ¹⁴⁵

The polarity of results of combatants’ self-conscious exercise of their existential freedom attests not only to the existential insight on the radical nature of freedom, but also to Gray’s observation that “[w]ar compresses the greatest opposites into the smallest space and the shortest time”.Footnote ¹⁴⁶ In this light, the architectonics of military institutions designed to limit the exercise of combatants’ autonomous actions in war may also be seen as inherently necessary to insulate the collective functionality of the armed forces from the encroachment of this radical human freedom. While the morality-driven approach certainly does not advocate any kind of unguided free actions by individual combatants, the place it advocates for moral inquiry and self-identityFootnote ¹⁴⁷ presupposes combatants’ self-conscious use of their existential freedom, which inevitably entails its radical potential.

Reining in existential freedom through “identity” inculcation

The radical potential of combatants’ self-conscious exercise of their freedom may in theory be reined in by constructing or inculcating an “identity” through the internalization of certain values purporting to reflect “who we are”.Footnote ¹⁴⁸ While existentialists such as Sartre might critique this as “bad faith”, they would not deny that an “identity” constructed or inculcated on the basis of certain narrativesFootnote ¹⁴⁹ could be a powerful source of influence on those who opt to perform prescribed roles.Footnote ¹⁵⁰ But “narrative identity”-building,Footnote ¹⁵¹ in order to be effectual, requires narrative coherence as the subject acquires self-knowledge through the construction of a “coherent and acceptable story” about themselves,Footnote ¹⁵² which involves making meaning out of one’s past personal experiences by reference to specific times and contexts.Footnote ¹⁵³ Therefore, the plausibility of inculcating among combatants the identity of a “warrior” with a “warrior’s code” that “preserve[s] a ‘shield of humanity’”Footnote ¹⁵⁴ depends on that identity’s coherence with the combatants’ own narratives of their lives.

It may be argued in general that an identity built on narratives around a noble “warrior” acting with “humanity” could cohere with the narratives of combatants who participate in hostilities for certain “benevolent” or “defensive” motives, such as to keep or enforce peace in United Nations (UN) missions or to defend against an aggression. Their shared ideals could create “the unity of a narrative” that makes personal identity intelligible.Footnote ¹⁵⁵ The real issue with narrative coherence arises in attempts to inculcate the identity of a noble “warrior” acting with “humanity” among combatants who are motivated to fight for less noble causes. Combatants may be motivated to participate in hostilities by the desire for revenge, spurred by intergroup hatred, prior group traumas and/or the killing of comrades. Others may be motivated by nationalistic sentiments, especially in wars fought to glorify the “homeland”. Yet others may be motivated by personal fulfilment (particularly for people with pre-existing violent tendencies), financial incentives (particularly for people living in poverty), peer pressure (particularly for people living in close-knit, militarized communities) or political sanctions (for conscripts). In these cases, norms analogous to IHL about “humanity” do not cohere with the identity narratives that led combatants into the hostilities – the narratives of avengers, conquerors, brutes, mercenaries, cogs in a machine. This narrative incoherence impedes the building of an identity of a noble “warrior” acting with “humanity” not only because internally it contradicts the combatants’ self-narratives but also because externally it contradicts the societal narratives from a third-person perspective,Footnote ¹⁵⁶ as in military campaigns that are outlawed from the beginning, such as wars of aggression or rebellion.

Backfiring of a “warrior” identity

Even if the military mission is itself legal and a so-called “warrior identity” is built within the mission, this does not necessarily translate into better compliance with IHL in practice. The recent scandal of war crimes committed by the Australian army in Afghanistan as part of the International Security Assistance Force mission authorized by the UN Security Council was a case in point. Although the military mission itself had the ostensibly noble goal of carrying out a Security Council mandate which included, inter alia, the protection of civilians in accordance with IHL, a cultural review of the unit subsequently found to have been involved in various IHL violations showed that the major motivation of many members of that unit was military career advancement.Footnote ¹⁵⁷ Significantly, the Brereton Report commissioned by the Australian army, which established “credible information” of IHL violations,Footnote ¹⁵⁸ did find a “warrior” culture, only not one that formed a “shield of humanity”Footnote ¹⁵⁹ but one that broke it:

While the morality-driven approach endorses only a “warrior” culture that promotes restraint and humanity,Footnote ¹⁶¹ the fact that a “warrior” culture could be understood so drastically differentlyFootnote ¹⁶² from different perspectives seems to vindicate RBW’s warning about the greater ease of relativization of moral values when they are inflated in the setting of war:

Stephens has argued that law can generate its own “internal rationality … that acts to anesthetize authentic experience”.Footnote ¹⁶⁴ The same can be said of “values” or “identity” when they backfire as a grand justification for perpetrating atrocities with a blind certitude belonging to what Simone de Beauvoir termed the “serious man”, who “gets rid of his freedom by claiming to subordinate it to values which would be unconditioned” and “imagines that the accession to these values likewise permanently confers value upon himself”.Footnote ¹⁶⁵ De Beauvoir’s characterization of the “serious man” bears resemblance to the psychological profile of Adolf Eichmann, who grandly claimed adherence to Kantian ethicsFootnote ¹⁶⁶ in faithfully pursuing the organizational goals of the Third Reich:

An existential conception of combatant authenticity on the battlefield

The mere denial of a fixed “identity” of a human being in existential philosophy does not preclude the possibility of authenticity; to the contrary, Friedrich Nietzsche made the call to “become who you are”.Footnote ¹⁶⁸ Nietzsche’s paradoxical call (for if we already are who we are, why do we need to “become” who we are again?) is emblematic of the existential view of an authentic life as the continuing process of creation of one’s unique selfFootnote ¹⁶⁹ which is nonetheless historically situated, as captured by Heidegger’s idea of “thrownness”: we are “thrown” into circumstances without our having chosen them.Footnote ¹⁷⁰ To Heidegger, it is by acknowledging one’s historical facticity that one can be “authentic” in the sense of owning one’s responsibility for creating certain, but not other, possibilitiesFootnote ¹⁷¹ in one’s particular situation. Heidegger called this authenticity “resoluteness”,Footnote ¹⁷² which “does not hold before us some empty ideal of existence, but calls us forth into the Situation” for it “does not first take cognizance of a Situation and put that Situation before itself; it has put itself into that Situation already”.Footnote ¹⁷³ It is by accepting the limits inhering in one’s specific situation that one gains “a clear-sighted understanding of the normative demands inherent in who [one] already is”,Footnote ¹⁷⁴ thereby working out “not the content of who [one] is” acontextually but “rather how [one] is [who] one is”Footnote ¹⁷⁵ in one’s specific situation.

This approach to authenticity finds resonance in the normative structure of IHL, as outlined in the introduction to this article. IHL accepts, as a matter of fact and without moral judgement, that combatants may be participating in an armed conflict in pursuit of an unlawful aggression, a criminalized rebellion or some greatly destructive cause, but nonetheless sets certain restrictions on these combatants despite the situation (which may inherently expose them to moral condemnation at some level) in which they already find themselves. This somewhat schizophrenic nature of IHL obligationsFootnote ¹⁷⁶ thus makes them situation-specific to a degree not commonly seen in other branches of law, whether international or domestic. This in turn shapes the minimalist nature of these obligations – despite the “humanitarian” connotations of its name, IHL does allowFootnote ¹⁷⁷ combatants to kill, maim and cause serious destruction to a degree unseen in other branches of law. The “authenticity” of the combatants may thus lie not in their heroic adoption of some grand moral identity in order to “win the population” of the territories being attacked,Footnote ¹⁷⁸ but in their resolute acknowledgement of the facticity of their situation (having to kill and maim, possibly for an unjust cause), which accentuates their remaining freedom (to avoid killing and maiming civilians and those hors de combat).Footnote ¹⁷⁹ This resoluteness rather calls up Jean-Jacques Rousseau’s image of opposing combatants as “enemies by accident”Footnote ¹⁸⁰ who share the same predicament, not as “warriors” but as vulnerable embodied creatures who, situated in circumstances not necessarily of their own choosing, can only find a modicum of humanity in each other – hence the idea that “all professional soldiers are comrades in arms”,Footnote ¹⁸¹ among whom IHL ultimately finds its appeal.