“It is not what a lawyer tells me I may do; but what humanity, reason, and justice tell me I ought to do.”

- Edmund Burke

Author’s Note: The following is excerpted from the draft of the book on Just War Theory which I am presently engaged in writing.

When we look at the morality of war, we have, unfortunately, an extensive history from which to draw anecdotal examples of immoral behavior. In instance after instance behavior has occurred that can be debated as to (1) whether or not the behavior was justified and (2) whether or not the result justified the behavior. It can be instructive to consider one such instance that has achieved nearly universal exposure in plays (Shakespeare’s Henry V), books and movies. This behavior, its justification and its result can provide a basis for considering the question of the value of the moral high ground.

Some may view it as only passing academic interest to subject historical wars to modern day Just War Theory, but there is much to be learned from looking at what has gone before through the lens of today’s thinking.  It may seem that holding, as has been done, mock trials to determine Henry V’s guilt in giving his orders for the slaughter of French prisoners may be largely an academic exercise (I know of no such case in which Henry has been found not guilty), but the study of both historical rules concerning warfare and warfare situations can aid us in the development of modern day Just War Theory.

On 25 October 1415, as part of the Hundred Years’ War, the English army under King Henry V met the French army commanded by Charles d’Albret, Constable of France¹ at Agincourt, in a narrow strip of open land between the woods of Tramecourt and Agincourt, near modern day Azincourt in northern France. Though outnumbered,² the English managed to visit a crippling defeat upon the French and perpetuated English dominance that continued until the slow decline of Plantagenet fortunes in France after the appearance of Joan of Arc. While the battle itself is an interesting story,³ Henry’s behavior during the battle provides an important scenario that is relevant to discussions of morality and war.

Because of their lesser numbers, in preparation for the battle the English adopted a defensive position designed to absorb attacks by the French. After the first two waves of French attacks were repulsed, the English found themselves in possession of around 2,000 French prisoners, all of whom were put under guard behind the English lines. Although the code of conduct at the time obliged the prisoners to refrain from making any attempt to either escape or return to the battle, the English could not be absolutely certain the prisoners would obey the code. Henry, therefore, had to concern himself with providing a sufficient number of guards to ensure the prisoners could not break free and rejoin the fight in the rear of the English lines.

As the English prepared to receive a third assault from the French, Henry decided he could not spare the number of men from his depleted ranks that would be required to guard the French prisoners so they could not rebel and launch themselves into the English rear. Upon reaching this conclusion, distasteful though it may have been, Henry ordered the slaughter of all the French prisoners. Describing Henry’s actions, John Keegan writes:

“Henry, a Christian king, was also an experienced soldier and versed in the elaborate code governing relations between a prisoner and his captor.  Its most important provision was that which guaranteed the prisoner his life – the only return, after all, for which he would enter into anything so costly and humiliating as a ransom bargain.  And while his treachery broke that immunity, the mere suspicion, even if well-founded, that he was about to commit treason could not justify his killing.  At a more fundamental level, moreover, the prisoner’s life was guaranteed by the Christian commandment against murder, however much more loosely that commandment was interpreted in the fifteenth century.  If Henry could give the order and, as he did, subsequently escape the reproval of his peers, of the Church and the chroniclers, we must presume it was because the battlefield itself was still regarded as a sort of moral no-man’s land and the hour of battle as a sort of legal dies non.”⁴

The incident at Agincourt is just one of many historical narratives that raise several questions, including:

1. Does, as Keegan suggests, the battlefield become a “moral non-man’s land” in which morality and ethics become irrelevant?
2. What morality, if any, applies to the ill treatment of prisoners of war in order to gain a battlefield advantage?
3. Who bears moral culpability for such orders—those who issue the orders; those who carry out the orders; or both?
4. If such actions are deemed to be unjust, how does their execution affect the perpetrator’s justification for prosecuting the war? Or does it?

Answers to questions such as these will depend largely upon two interrelated items—(1) how one views war, and (2) the value one places on retaining the moral high ground.

For the realist, the moral high ground is virtually non-existent when applied to considerations of war because, for him, the ends justify the means. Both the pacifist and the Just War Theorist, on the other hand, will normally place significant stock in maintaining the moral high ground. The pacifist will never condone Henry’s actions, and it is only with great reticence and assurance that the act is justified by some higher moral objective that adherents of Just War Theory will deign to endorse actions such as those of Henry V at Agincourt.

But why is the moral high ground of such importance? It is important because, simply put, humans are basically moral creatures.⁵ By this I mean we are special and unique among the animal kingdom in that we are capable of making judgments about our own and other people’s behavior. Furthermore, we have the capacity to consciously change the way we behave, both individually and collectively—we have the Freedom of Choice.

The moral high ground is that space in which our actions are motivated by and consistent with our own personal moral code. Because of our capacity for making such judgments and modifying our behavior, when we abandon a portion of our code in order to accomplish a specific end, when we perform an act that is contrary to what we believe, we yield the moral high ground. The result is injury, not only to those whom our actions affect, but also to ourselves.

This is not to say our choice of action will always be easy or straightforward. At Agincourt, Henry appears to have felt the need to kill his French prisoners, in part at least, to preserve the lives of his own soldiers. The result was a victory for the English army, but at what cost? We cannot know whether Henry or any of the Englishmen who carried out his bidding were ever stricken with such grave remorse that they later took extreme action on friends, loved ones or themselves. History does not tell us of the constant recurring nightmares any of them might have been forced to endure for the remainder of their lives.

In modern day warfare, the decision to torture a few individuals in order to extract information that can potentially save the lives of hundreds violates our moral code against doing harm to others. And yet, faced with such a choice, different individuals will make different decisions as to whether or not to compromise their own morality. It is this struggle for guidance in how to make, if not the “right” then, the “best” such decisions to which much of Just War Theory is directed.

Much of current Just War Theory rests on what has gone before.  Concepts and rules developed by the Greeks, the Romans, the medieval Catholic Church and philosophers of the past three centuries all put forth important considerations for today’s Just War Theory.  It is not too hard to imagine that, although warfare has changed considerably through the centuries, many of the same concerns such as the concept of “Christian charity,” concern for the devastation caused by war and consideration of the impact of war on non-participants are just as relevant today as they were when Augustine of Hippo established his views on warfare and the Christian ethos in the late 4th and early 5th centuries.

But the historical view provides us with more than just the theoretical underpinnings for developing a modern day Theory.  By looking at past wars and their aftermaths we can avail ourselves of a more comprehensive understanding of what drives us to war, how we prosecute wars and how we deal with war’s aftermath.  Were we to disregard prior warfare and concern ourselves only with future wars, we would be left to develop our Theory in a purely theoretical sphere with no empirical data, no historical facts to help direct our considerations. Having the concrete example of Henry V’s actions at Agincourt, and others like it, compels us to give consideration to the treatment of prisoners—not because we image they might be poorly treated, but because we know for certain they can be.

The lynchpin of Just War Theory is the effort to retain the moral high ground. A doctor who is committed to “first do no harm” will only inflict further injury (e.g., surgery) upon his patient when the expected result of that injury is a condition in which the patient’s welfare will be improved. Similarly, Just War Theorists will only condone the violation of the commandment against murder when the expected result is a condition that is morally superior to that which exists prior to the violation of the commandment. Moreover, the expected result must be seen to be a holistic moral improvement, not simply a one-sided result that will be advantageous to the state.

The value of the moral high ground is that it forces us to consider and then reconsider our actions. Abdicating it reduces our ability to not only justify our actions but, having acted immorally, later regain the high ground. When we kill once, it becomes far easier to kill a second time. When we give up our morality in pursuit of one end, it becomes far easier to give it up again later in pursuit of another. And with each abdication, it becomes that much more difficult for us to claw our way back to the top.