In this paper, Professor Wasserstrom argues rather uniquely that a view of the current laws of war that upholds their moral importance and primacy is a view that is "mistaken" and "morally unattractive." He argues that the laws of war do not make the important moral distinctions often claimed for them (most critically they do not appropriately distinguish between combatants and noncombatants), and secondly, they do not have the beneficial effects frequently attributed to them. He finds that the doctrine of "military necessity" too often provides exceptions to rules that might have protected the innocent, that conduct cannot be labeled criminal if both sides in the conflict engage in it, and that the conventions in war change to accommodate the introduction of "important instruments of war." He argues that the traditional view that the laws of war restrain uses of violence and prevent war from becoming totally inhuman is not compelling or totally accurate. The incompleteness and incoherence of the existing laws of war and the prevailing provision that permits the rules to be set aside when they conflict with an important military goal together legitimate what Wasserstrom calls "morally indefensible behavior." He concludes that proper laws of war should make the methods and instruments of war conform to rules of morality and not the other way around.
Many persons who consider the variety of moral and legal problems that arise in respect to war come away convinced that the firmest area for judgment is that of how persons ought to behave in time
© 1972 by the Open Court Publishing Co., La Salle, Illinois, and reprinted from The Monist 56, no. 1, pp. 1-19, by permission.