Michael Gross believes that much contemporary warfare is so different from past armed conflicts that many of the old moral and legal prohibitions should no longer apply. This belief unites a variety of intellectuals and many political and military practitioners. It was a keystone of the neoconservative declaration of “the new normal” that influenced President George W. Bush's political mind-set.
Gross writes fluently, with a wealth of realistic examples, touching on the issues of the immunity of noncombatants, the associated rejection of terrorism, the prohibitions on torture, targeted assassination, and hostage taking. He makes many interesting observations (the discussions of proportionality and of nonlethal weapons are particularly thought-provoking), and he shows sensitivity to the complexities of modern armed conflict and the force of the typical moral qualms that he challenges. Nonetheless, but there are a number of assumptions in his argument that this reader finds problematic.
The first is his basic point of departure about the radical difference of contemporary wars; the second is the way he tends to conflate the common practices of adversaries with the moral (or legal) norms that should govern their behavior; and the third concerns his approach to the moral basis for the norms of war.
One of Gross's key claims for the novelty of much contemporary armed conflict concerns the lack of reciprocity in asymmetric conflict. He also claims with respect to some new wars, notably wars against terrorists, that the “weaker” side's lack of interest in a political settlement marks a striking departure from traditional war. A crucial premise in his moral case for revisions is the claim that normative restrictions on the conduct of war must accommodate the “right to a fighting chance” (p. 39) enjoyed by both sides. This claim consorts closely with his emphasis on the importance of military necessity and the need to accommodate morality (or “humanitarianism”) to it.
Gross stresses the way in which international law's abandonment (in Protocol I of the Geneva Conventions) of the requirement that hostile forces wear distinguishing uniforms puts pressure on the capacity to respect noncombatant immunity, especially when insurgents use the cover of civilian areas, such as towns and villages. He thinks that this abandonment is justified by the right to a fighting chance, which in turn must allow the side with uniforms to take a more relaxed attitude to noncombatant immunity. But the novelty of armies having to deal with non-uniformed insurgents is exaggerated. The German army in World War II had to confront the non-uniformed French Resistance forces, and the French and American forces in Vietnam had much the same problem with the Vietcong, as did the French in Algeria and many other colonial powers facing resistance in the more distant past.
In addition, the whole notion of asymmetric war, in spite of its popularity, is a doubtful tool for analysis. In Iraq and Afghanistan, the “weaker” sides seem primarily defined by the fact that if they were to engage solely in traditional set-piece battles, they would do badly. But this counterfactual test is of limited interest, as is technological superiority itself, since simple technology, such as the now popular improvised explosive device, is often highly efficacious in context, and more complex technology at sufficiently effective levels is increasingly available to insurgents. Nor is pressure to expand the category of combatant unique to asymmetrical war, since it was a striking feature of the “total war” mentality of such conventional conflicts as World War II. Gross's claim that “terrorists” and some other participants in new wars are uniquely uninterested in political settlements is misleading, since many insurgents using terrorism aim at clear, negotiable political objectives (for example, ending occupation), whereas the Allied commitment to unconditional surrender in World War II was an outright rejection of political settlement.
If the reality of contemporary war is not so radically new, then Gross's revisionary case has less force; but in any event we should distinguish between changes that make it more difficult to apply rules and changes that require completely new rules. It is hardly news that when armies find it hard to win by fair means they play foul, but Gross's deference to the demands of military necessity and the supposed role of reciprocity often blurs the distinction between what people are likely to do and what they ought to do. Thus, he claims that in “technologically unmatched [conflicts where] reciprocity breaks down completely—non-state or rogue state actors will not always receive combatant equality” (p. 50). But the question is: should they?
Further, in discussing relaxations of noncombatant immunity, he often talks of civilians becoming more “vulnerable,” whereas the question is not whether they are more likely to be attacked but whether they should be. Certainly, where one state has no reason to fear equal retaliation from an enemy, it will be tempted to violate moral constraints. But this is not a normative fact, as Gross sometimes realizes, but often forgets. He seems to think that the moral constraints on fighting methods are somehow based on explicit or implicit agreements related to mutual advantage. But the concern for noncombatant immunity is much deeper than that: it rests partly on the need to restrict the carnage of war, but also on the fact that armies have no right to attack those who have no serious role in prosecuting the putatively unjust activities that legitimate lethal resistance. Hence, noncombatants remain immune whether or not their immunity obstructs someone's supposed right to a fighting chance. If some group cannot have a good enough chance of winning a war without poisoning water supplies or massacring children, then bad luck.
In fact, some of Gross's suggested changes need not rely so heavily on his fighting chance/reciprocity story, since he argues, for instance, that many civilians should be treated as combatants or “quasi-combatants” based on the role that they play in the conflict. This is a reasonable starting point and shows that the terms “civilian” and “noncombatant” should not be treated as coextensive. Even international law allows that civilians taking an active part in hostilities are not entitled to noncombatant immunity. Nonetheless, there is room for dispute about the degree of involvement that forfeits immunity. Gross wants to allow certain sorts of attacks on “associated targets” where civilians as “indirect participants” are “quasi-combatants,” but he is unclear about why attacks on them are legitimate or what sort of attacks on them are allowed.
It seems he would prefer nonlethal attacks on banks, media outlets, welfare offices, or schools so that they are “disabled” by serious harms short of death. But in his discussion of Israel's more lethal attacks on such institutions in the second Lebanon war of 2006, he objects only that they may have been ineffective, whereas the prior question is whether the contribution such institutions and people make to a war is significant enough to make them morally liable to attack. This is glossed over by Gross's concern that without that liability the stronger side “quickly runs out of targets” (p. 160).
Gross concedes that relaxed constraints should apply equally to the strong and the weak. But they do not apply to some groups, notably terrorists, and their application to other weak parties is sometimes hedged by circumstances. Thus, certain forms of torture, such as waterboarding, are legitimate for the strong, but the weak seem denied them because they are unlikely to find the techniques as profitable or be in a position to make use of them (p. 139). In sum, Gross often seeks a middle position between radical rejection of accepted norms and strong defense of them, but surely many readers will find that his “moderation” offers too much license for atrocity and brutality.
