Excusable Measures: Should we Punish those who kill Innocents to Save Themselves?

Can soldiers justifiably kill innocent aggressors, and does our answer cast any doubt on contemporary just war theory?  Michael Otsuka argues that ‘with few exceptions, it is wrong to kill… an Innocent Aggressor and an Innocent Threat. (1994, 74).’  If we concede that Otsuka’s arguments are sound, then they seem to pose a significant problem for contemporary just-war theory, specifically the principle that an individual becomes liable to attack when they pose an immediate threat.[1]  One of the specific areas of controversy that the principle governs is whether soldiers may kill child soldiers in order to protect their own lives.  In this essay, I am going to concede to Otsuka that killing an innocent aggressor to save one’s own life is impermissible.  What I would like to propose is that even ifwe concede that killing an innocent to save one’s own life is not a justifiable act, it is still excusable.  The act of killing an innocent to save your own life should be considered excusable because requiring otherwise is to require individuals to act as moral paragons, which I propose is an unjust imposition on individual autonomy.
My essay is divided into three sections.  In section 1 I will define innocent bystander and innocent aggressor, and briefly sketch out Otsuka’s argument as to why it is impermissible to kill an innocent aggressor in order to save your own life.  In section 2 I will argue that it is morally excusable, though not morally justifiable, to sacrifice an innocent bystander or kill an innocent aggressor in order to save one’s own life.  I will examine a case study done by Gideon Rosen (2014) of a soldier who was forced to murder innocents in order to save his own life, and then I will put forward a two-part argument that killing an innocent aggressor should be an excusable act.  First, borrowing from Rosen’s case study, I propose that killing an innocent in order to save their own life has not acted contrary to common decency, though they have acted contrary to the moral imperative put forward by Otsuka.  They have, as I shall characterize it, failed to act as moral paragons.  I will argue further that requiring individuals to act as moral paragons is an infringement on individual autonomy.  In section 3 I will examine how the case of soldiers may differ from the case of civilians.  Specifically, I will examine whether soldiers should be obligated to sacrifice their lives if it is a choice between their life and the life of an innocent.  I will propose that if soldiers are obligated to sacrifice their lives in such circumstances then they can not be excused from killing an innocent to save their own lives.  However, I will argue that, just as in the civilian case, to require soldiers act as moral paragons is an unjust infringement on their autonomy.
Section 1: Otsuka on Innocent Aggressors
Before getting into the rest of the essay, I will define some important terms.  In just-war theory, to be innocent means not being liable to be attacked (i.e. having done nothing to have one’s right not to be attacked waived).  An important reference individual is the innocent bystander, the gold standard for a person who is not liable.  If you grab a random person in a crowd and use them as a bullet shield, you are using the life of an innocent bystander to save your own life.   An innocent aggressor is an individual who intends harm, but, due to some facet of their circumstance, is not responsible for that intention.  Otsuka uses the example of someone under the influence of a strong hallucinogenic drug that causes an individual to enter an aggressive rage (74-75).  It is somewhat controversial whether child soldiers are innocent aggressors, but for the purposes of this essay I am going to assume that they are.
Otsuka makes the case that killing an innocent aggressor is morally indistinguishable from killing an innocent bystander, namely, a morally impermissible act.  Otsuka’s starting point is the impermissibility of using the life of an innocent bystander in order to save one’s own life.  The essence of Otsuka’s argument is that, all other things held equal, innocent aggressors are morally equivalent to innocent bystanders.  If it is morally impermissible to harm one then it is morally impermissible to harm the other.  For the purpose of this essay, I’m going to concede Otsuka’s premise that killing an innocent bystander is morally equivalent to killing an innocent aggressor, and we can not justify killing either in order to save our own life.
Section 2: On Excuses and Paragons
Though I have conceded to Otsuka that killing an innocent is not an unjustifiable action, I will argue that it excusable.  First, I am going to explicate a case study of a soldier forced to kill innocent civilians in order to save his own life.  Next, I am going to examine and endorse an argument put forward by Rosen that an individual who kills innocents to save his own life may act contrary to moral decency, but not necessarily basic decency.  Finally I will utilize Rosen’s argument by proposing that when killing an innocent person to save your own life does not contradict basic decency then the we should not interfere with that individual’s autonomy in that instance by imposing punishment for acting immorally.
In his 2014 paper Culpability and Duress: A Case Study, Rosen examines the case of a soldier named Dražen Erdemovi (71-72).  Erdemovi was a member of the Bosnian army in 1995.  On one particularly terrible day Erdemovi participated in the massacre of over a thousand civilians.  He estimated that he himself killed around seventy people.  He was, however, in extenuating circumstances.  He was told that if he did not participate in killing the civilians, then he would be killed as well.  Shortly after the massacre, Erdemovi deserted from the army and surrendered.  Rosen proposes, based on the pareto principle, that Erdemovi’s actions were morally justifiable.  This scenario is different than the case of an innocent aggressor discussed by Otsuka because Erdemovi was not choosing between his life and that of an innocent.  However, in her paper Rosen also wanted to explore whether Erdemovi’s actions were theoretically justifiable if he had been choosing between his life and the life of another.  Imagine if Erdemovi’s resistance would have allowed a prisoner to escape (76).  Would his actions be excusable then?
Rosen proposes that Erdemovi’s actions are potentially excusable because his actions do not display an insufficiently good will.  The core of Rosen’s argument is that there are two aspects of decency on which Erdemovi should be judged.  The first is the moral aspect, which is just the question of whether Erdemovi acted morally.  Rosen believes, in line with Otsuka, that in the hypothetical scenario where Erdemovi could have saved an innocent by sacrificing himself, doing otherwise would be immoral (Rosen, 78).  The second aspect that Rosen proposes is the aspect of common decency.  Common decency does not pertain to morality directly.  To violate common decency is to upset one’s place in the social order.  If I am cruel to you, for example, then you will react by changing your relationship to me.  This is, Rosen emphasizes, not just a change in demeanour but a change in the relationship itself (86).  In Erdemovi’s case, Rosen tentatively argues that because of the extreme duress under which he made his choice then we might not be warranted in distancing ourselves from him socially (88-89).  He had not, in other words, demonstrated himself to be someone in need of social shunning.
Using Rosen’s initial structure, I will argue that killing an innocent (an aggressor or even a bystander) should be an excusable act because otherwise we are interfering with an individual’s autonomy.  First, I want to propose a re-characterization of whythe two aspects of decency come apart in cases such as Erdemovi’s.  In cases such as Erdemovi, I would present morality as requiring an individual act as a moral paragon.  The reason that we may intuitively feel that such a person still can have a place in society is because being a moral paragon is not usually a prerequisite for being even a respected member of society.  We may feel strongly that there was a right action, but we can strongly sympathize with the wrong action that an individual opted to realize. 
Taking my re-characterization, what I propose is that requiring individuals act as moral paragons is an unjustifiable infringement on their autonomy.  What I propose is that an individual should be excused of immoral action if punishing them would be to require that they act as moral paragons.  We do not require people act as moral paragons in their everyday lives, why should we require such paragonism of those unfortunate enough to be thrust into extraordinary and terrible circumstances?  There is a drastic kind of egalitarian unfairness to Erdemovi’s punishment, I think, because but for chance and circumstance many others would have acted just as he had.  Erdemovi, in other words, is being punished for bad luck given that the moral failing that he displayed is likely somewhat common.  On the basis of this unfairness, I propose that in cases where morality demands that we act as moral paragons, we should be free to choose without interference.  Sometimes the world is a terrible place, and our enforcement of moral principles should allow for this reality. 
Section 3: Soldiers and Just War
So far I have just been examining whether civilians can kill an innocent in order to save their own life.  What I would like to address now is whether the circumstance of a soldier fighting in a just war is different.  The question that I’m asking is this: can soldiers systematically be permitted to act in a way that is merely excusable in a just war?  First I am going to concede that if soldiers join an army under the requirement that they sacrifice their lives to protect an innocent aggressor, then they should not be excused.  I will then argue that a war can still be just even if it does not systematically require soldiers to be moral paragons.
If becoming a soldier requires explicitly acknowledging that you are required to sacrifice your own life for the sake of an innocent aggressor, then I do not think that such an act is permissible for them.  My reasoning is simply that the soldier has given premeditated consent to sacrifice themselves: they cannot appeal to the terribleness of their situation because they placed themselves in that situation.  The more challenging question is whether soldiers need to be required to so in order for a war to be just.
Though soldiers are put in more exacting moral circumstances then the average citizen, I believe that there are limits to the constraints we should put upon their autonomy.  When it comes to implementing just war, if we accept my argument so far then we have two options: we can either allow soldiers their autonomy when it comes to the killing of innocent aggressors at the expense that probably more will, or we can forbid them from doing so and in so doing deprive them of their autonomy.  Either way there will be some injustice.  I am inclined towards the latter for a fairly simple reason: soldiers are people just like civilians, and like civilians I think that in such extreme circumstances they should be allowed their autonomy.
I may concede that killing an innocent aggressor is an unjustifiable act, but I maintain that it is excusable.  I believe that it is excusable because we should not be required to act as moral paragons: to do so is admirable, but it is unjust if it is mandated.  I also propose that, just as with civilians, soldiers should not be required to act as moral paragons.
     McMahan, Jeff. Killing in War. Oxford Scholarship Online, 2009. Web. 28 Dec. 2014.
     Otsuka, Michael. 1994. “Killing the Innocent in Self-Defence.” Philosophy and Public Affairs 23 (1): 74–94.  
     Rosen, Gideon. “Culpability and Duress: A Case Study.” Aristotelian Society Supplementary Volume 88.1 (2014): 69–90. Print.

[1] As described by Jeff McMahan (2009)

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