Just War Criteria and the New Face of War: Human Shields, Manufactured Martyrs, and Little Boys with Stones
Michael Skerker
The last decade has seen the deployment of great armies against technologically inferior opponents. At a time when America in particular has a peerless technological advantage in conventional war making, military tacticians and defense procurers in the West are ironically forced to grapple with dilemmas created by this asymmetry. So long as this asymmetry persists, weaker forces will seek to neutralize their enemies' superior technology through the use of guerilla or terrorist tactics, decentralized command structures, the exploitation of civilian populations and refugee migrations, and other unconventional means.[1] A new tactic adopted by some conventionally overmatched groups is the deliberate manipulation of the moral scruples of the stronger side and of the wider world (now able to witness war-time atrocities with near real-time immediacy) by forcing violations in the rules of war.[2] In what follows, I will first seek to draw attention to the use of this tactic in recent conflicts and then analyze its moral ramifications in light of the Western just war tradition.
1.
The Western just war tradition has Athenian, Roman, and Christian philosophical and theological roots.[3] This intellectual tradition offers a normative account of the conditions and methods of war fighting, beginning with the assumption that willful killing of human beings can be justified under certain circumstances, and that once the fighting begins, one can distinguish between acceptable and unacceptable tactics. This paper will not seek to rework the consensus regarding the criteria for jus ad bello, (the justice of going to war), or jus in bello, (justice in fighting), and so will refer to the criteria as unproblematic.
The characteristic feature of war violates humanity's central moral prohibition. As such, just war thinking is animated by the tension of moralizing in a context seemingly made morally vacuous by the abandonment of the central prohibition on killing. I understand the tenets of the just war tradition to place bounds on the destruction of life, asserting the right to life for all in a context where normal institutional protections of life are absent or not fully in force. Focusing on the main jus in bello restrictions for the present, we can understand discrimination as promoting the distinction between two classes of people: combatants, who have ceded their absolute right to life by threatening others, and noncombatants, who have not ceded this right. The demand for proportionality calls for a distinction even among those who have relinquished their absolute right to life: between those whose deaths are instrumental to the tactical or strategic objective and those whose deaths would be gratuitous. The prohibition of weapons that produce particularly painful and prolonged deaths can be understood as an application of proportionality.
Just war thinking is a vehicle for recognizing and asserting the right to life in every instance where it is not mitigated by tactical imperatives. A theorist is right in acknowledging the tactical imperative as part of the moral landscape when the war in which the tactics appear is itself just. In an unjust war, tactics are only tactics, and could be evaluated by a tactician as better or worse in the technical, and not moral sense of the words. Military tactics ought to have bearing in just war thinking because military action is seen in the tradition as a sometimes legitimate channeling of social will (i.e. when jus ad bello criteria[4] are met), channeled through specialized actors who act to meet particular goals. These goals (obtaining tactical objectives, winning battles, winning wars) are subsidiary, but nonetheless contiguous with those of the wider society. Just war thinking then is an attempt to insure the contiguity of military with societal goals by interweaving regular societal norms with military tactics. This is to imply that the tactical imperatives facing commanders engaged in a just war are made moral imperatives[5] by a nation's recognition of the military action as a legitimate channeling of its will at a particular time through the action of specially-trained actors.[6] A commander hewing to just war criteria then, is a moral actor—not just a good soldier, but a good person—because he is acting in accordance with social morality applied to a particular vocational context. Such an understanding of military tactics is necessary if military activity, with its otherwise self-guiding logic and particular goals, is to remain an expression of social will, and not an uncontrolled aberration from it (i.e. crime), nor the sort of authorized departure the termination of which is not planned, but only hoped for.[7]
With this hopefully not too controversial portrayal of just war thinking, I want to clarify one other conceptual issue that arises in the literature. Different thinkers discuss just war restrictions by emphasizing the right of the "innocent," or "noncombatants" not to be harmed and/or by emphasizing the conscience of the soldier potentially putting noncombatants in harm's way. Most moral claims similarly involve an internal and external valence, i.e. an effect on both the subject and object of the action. Some schools of thought emphasize the importance of moral actions for the results that accrue to the soul of the agent, while others emphasize the beneficial consequences of moral actions to others and/or to society at large. What follows in this paper does not depend on privileging one valence over another; I take the soldier's conscience[8] and noncombatant welfare to be a relational state of affairs. The integrity of both poles of this relation are valued and to be protected by adherence to the rules of war.
If just war thinking is understood as an application of "regular" societal norms in a particularized, but socially-authorized, sphere of activity, designed to keep that activity contiguous with society's purposes, the relationship of these two emphases can be presented as follows. The soldier wishes, and a just society wishes for him, to continue being a moral agent even when removed from the social setting that serves as the normal context for his moral instincts. Just as a person is socialized in most cultures to feel some sort of mental pleasure/pain in correlation with actions that are good/bad for others (i.e. to have a conscience), a soldier ought to be socialized in particular vocational terms to maintain this conscientious correlation between his feelings and actions in combat situations.
2.
In basketball, it is a common and accepted practice to "draw the foul," to position oneself so an opposing player cannot help but initiate illegal contact. The contact results in a penalty, and either possession of the ball or one or two uncontested shots at the basket for the fouled player. The tactic of "drawing the foul" is a perfect analogue for the unconventional and deliberate tactic described in the examples to follow. To put the point formally: it appears that a modern tactic in asymmetrical conflict is for a conventionally weaker side to attempt to neutralize the technological and/or numerical advantage of its enemy by shaping the conditions of combat in such a way so that the enemy cannot act without violating the rules of jus in bello. The weaker side's tactics may succeed at protecting vital assets by forestalling enemy aggression, or, if the enemy proceeds and violates the rules of war, the accompanying global outrage and disgust of the enemy's own people (and perhaps, soldiers), may preclude comparable future assaults or require retreats as effectively as would have a conventional victory by the weaker side .[9] "Drawing the foul" enables the weaker side to change the dynamic from a game the stronger side could not lose, to one it cannot afford to play, or it can only lose, by winning.
Asymmetry in warfare of course is not new, but the extent and capabilities of the modern media to illustrate suffering are novel, relative to the long history of warfare, as are perhaps, some of the attendant (and probably, not altogether separable) sympathies of war planners, war fighters, and their civilian audience of the West. Much has been written about how images of fighting have affected both the way in which modern war is prosecuted and how the domestic citizenry conceives of military actions. Perhaps not enough has been said, outside martyriological contexts, about how the very images of being overwhelmed by a superior fighting force, no matter the justness of its, or the vanquished's cause—can be used by the vanquished for tactical effect.
It is counter-intuitive to think of inviting massacres as a military tactic. It is surely not an application of conventional military tactics to protect bunkers and command posts with handcuffed tourists, to snipe on enemy patrols with the intention of provoking reprisal massacres in nearby villages, nor to send out little boys armed with slingshots against APCs and tanks. From the standpoint of traditional military tactics, these avenues are counter-intuitive and stupid; and from a just war perspective, they are immoral. One must try to isolate civilians (especially one's own) from the battlefield. Yet in Baghdad, Kosovo, and the West Bank, these acts were deliberately undertaken by the conventionally weaker side. They were not spontaneous demonstrations or accidents of war. In the months prior to the start of the air war over Iraq and Kuwait, Saddam Hussein revealed he was "hosting" foreign "guests"—tourists, businesspeople, and other foreign nationals—at various strategic sites throughout the country.[10] Adopting a similar strategy, Serbian forces chained unarmed UN monitors to military targets in Bosnia to forestall allied airstrikes during the siege of Sarajevo.[11] In 1996, amidst suspicions that American military planners were considering a strike against a suspected underground chemical weapons facilities, Libyan leader Muammar Quaddafi threatened to surround the plant with "millions of Muslims."[12]
A more passive example of the same tendency involves the placement of command posts amidst civilian populations. This tactic has been undertaken by both the Iraqis and Serbs.[13] Unable to defend targets in a conventional manner against superior air power, the use of human shields is clearly meant by the defenders to deter attack. Media coverage is a crucial factor, as unseen and unsuspected human shields obviously form no deterrent to high altitude bombing. Foreign journalists were invited to film or report on all of the above events, the media coverage itself being used as a weapon to cow and shame the more powerful side.
Civilians killed in assaults can be deemed martyrs and exploited to deter further attacks. Iraq quickly let foreign journalists view the devastated remains of the Amiriyek bunker in Baghdad after an air strike killed over 300 civilians on February 13, 1991. The Pentagon asserted that it had not known that civilians had sought shelter there. The result of the attack was noted by Iraqis and others: after February 13, bombing in downtown Baghdad effectively ceased. Yet leaders may do more than take advantage of enemies' errors, and actually "manufacture" martyrs for propaganda purposes.
There is suspicion among surviving Serbian journalists that during the Kosovo War, Milosevic knew the TV station in downtown Belgrade would be bombed, and yet insisted that it be manned round the clock, hoping to use the inevitable civilian deaths to splinter NATO's resolve.[14] Saddam Hussein has refused to buy medicines allowed his regime under the U.N.'s "oil for food" program in order to fault the allies with killing Iraqi children.[15] It has been reported that his regime stores children' corpses in morgues for months, in contravention of Muslim funereal law, in order to hold anti-sanction rallies with sufficiently impressive numbers of tiny coffins.
A further tactic involves the deliberate provocation of a more powerful force in the hope that disproportionate vengeance will be wrought on the weaker side's civilian population. Michael Ignatieff reports of talk that the secret strategy behind the Kosovar Liberation Army's ambushes of Serbian police outposts in 1998 was to provoke Serbian massacres (for which Serbian forces had shown a propensity during the last two Balkan wars) in Kosovo awful enough to compel NATO to intervene.[16] Walzer argues this sort of provocation is characteristic of guerilla movements: a small revolutionary force attempts to "place the onus of indiscriminate warfare on the opposing army" in order to mobilize the entire population against the opposing force. In this vein, Mao wrote, "With the common people of the whole country mobilized, we shall create a vast sea of humanity and drown the enemy in it."[17] In contemporary times, media coverage enables mobilization on a global scale. One might contrast the impact the second intifada has had on Arab and Muslim populations throughout the world compared with the first, and convincingly trace the difference to the satellite TV station Al Jazeera's coverage.
In this context, I would argue that it is as much the aim of contemporary Palestinian militants to goad disproportionate Israeli reprisals in the occupied territories as it is to simply inflict pain on the Israeli population. Following a long history of asymmetrical provocation, elements in the Palestinian Authority have simply moved from provoking Israeli anti-guerilla raids into neighboring countries—a strategy employed in the '50s and '60s meant to spark a regional war[18]—to provoking raids into the West Bank and Gaza Strip themselves. Now the intent is to unite everyday Palestinians in struggle, and more importantly, to garner sympathy and support from the wider world. Likewise, the part of the purpose[19] of encouraging schoolboys to attack army outposts with stones must be to manufacture martyrs for the state propaganda mills. Arguments that these demonstrations are spontaneous protests by children are not credible. Not when pictures of fallen children are pasted up and venerated as martyrs in classrooms, and not when the Authority pays for class trips to visit classmates in the hospital and to view deceased classmates' effects in hastily built but lavishly appointed museums.[20]
This paper will focus on the moral obligations of the stronger side when faced with this tactic. Before turning to this issue though, I will outline three possible avenues of approach for discussing the ethics involved in the weaker side's use of these tactics. First, one might criticize the weaker side's endangerment of civilians as contrary to the discrimination protocol of jus in bello and the spirit of the associated international laws calling for the discrimination between combatants and noncombatants (to say nothing of the basic tenets of any theory of responsible government). While both just war theory and the relevant law charge attackers with the responsibility of discrimination, it is reasonable to retrieve the underlying principle of avoiding harm to innocents in order to extend that responsibility to defenders as well. Even if they are killed by the direct action of the enemy, culpability is shared by the defending side that placed them in harm's way.[21]
Another route, one that could potentially justify such action, would appeal to Walzer's category of supreme emergency, wherein ordinary moral restraints are suspended because of the dire nature of one's plight and the "demonic" nature of one's enemy. This route clearly rejoins jus in bello and jus ad bellum concerns as one justifies what would otherwise be an immoral act by appeal to the good toward which it is oriented. Such a move is problematic, insofar as it jettisons deontological moral theory (i.e. that prohibits certain acts no matter their intended purpose) and needs to describe the "threshold" determining when the point of supreme emergency has been reached. James T. Johnson's appropriation of Vittoria provides a compelling argument for maintaining the distinction between jus ad bellum and jus in bello. It is often, if not always, the case that both sides in war believe their cause to be just; a commitment to fighting well regardless of one's cause prevents every conflict from escalating to total war.[22] If the stage of total war (i.e. involving systemic anti-population campaigns) has already been reached, the question of abandoning jus in bello restraints is moot.
Charles Dunlop raises a third, intriguing line of inquiry: if a force is unable to respond in kind to an enemy using advanced (and highly accurate) weaponry, does the less advantaged side have the right to use whatever weapon is in its arsenal, even if the weapon will violate the jus in bello rules of discrimination and proportionality?[23] This third point, so considered, is convertible with the supreme emergency avenue—does our cause justify immoral tactics?—and the questions facing it.
3.
What are the stronger side's responsibilities with respect to the tactic of "drawing the foul"? The basic demand of jus in bello for discrimination immediately problematizes the stronger side's situation (to be referred to hereon as the agent). Given a desire to strike at a legitimate military target, or to advance troops or armor, the agent is now faced with two choices: forgo discrimination to achieve those goals, or forgo the advance. The nature of the situation may even render sincere attempts at discrimination futile so that the results of the action would be similar or identical to an action in which no attempt at discrimination was made. Forgoing discrimination or being unable to effectively discriminate means knowingly killing or injuring noncombatants, either in front of cameras, or with the certainty that camera crews will shortly invited to the morgues and shattered targets.
Many just war theorists would invoke the principle of double effect in relation to the possibility of harming noncombatants in the course of legitimate military activities. The medieval scholastics concluded that it is morally right for an agent to do something he foresees will have a good and bad effect, provided that the bad effect is an undesired, simultaneous side effect of the good done, and that the good done is of such importance as to outweigh the bad.[24] Such a principle could and has been used to justify noncombatant deaths incurred in the course of legitimate military activities.
The tactic I'm describing may not fully addressable using the principle of double effect because it is the enemy's, and not the agent's initiative that directly places noncombatants in harm's way.[25] That is to say, the agent's action is not of a sort which, barring the enemy's unconventional maneuver, would have grossly endangered civilians (and so even have prompted a consideration of double effect). The civilians may have even consented to their use in this game.
Beyond these moral nuances, the tactical consideration is different in this media age, so that the potential justificatory moral power of double effect is moot. This is to suggest a broader point that I cannot defend here in detail: the logical coherence of a moral argument (e.g. a particular formulation of the doctrine of double effect) is insufficient to justify an action; logical coherence is grounds for justification, but justification is contingent on a community's actual consent to the proposed action, be it on these grounds or others. While this understanding of the source of moral norms' binding nature is a subject of contemporary debate among ethicists, I would suggest that the way moral arguments like double effect are used to defend military actions in the West hastens our acceptance of this formulation.
The doctrine of double effect was developed in a penitential context wherein coherent deduction from right first principles of natural law was taken to be the proper course for precisely formulating the moral worth of an action (the direct purpose of which was to calculate the proper penance for moral infractions). Western military planners utilize the doctrine of double effect in part to justify military actions to the citizens who are ultimately authorizing their activity. Formally valid arguments which citizens in a democracy no longer find compelling cease to have much justificatory merit. Another way of getting at this point is to assert that for a norm to be justified in the public realm, it needs to be both good and right: it must recommend an action with a good effect and must be authorized in the right way. In a democracy, this means that the action must be prospectively or retrospectively acceptable to the voting public. A tenet of just war theory is that military action is only just if authorized by the right authority; even morally good actions (e.g. those justified by double effect) are not morally right if committed by rogue forces.
The effect that images of civilian dead will have on the public of the side prosecuting the war will vary with cultural sensitivities, [26] but I would like to suggest a reason beyond emotion for the discrepancy between the formal validity and public acceptance of an action.[27] The doctrine of double effect only applies to situations where an action will foreseeably have a good and bad effect, and the effects are inseparable. The publicity-oriented nature of a tactic meant to "draw the foul" will often make it appear that good and bad effects are separable—we see that we only need to untie the hostages, or chase the rioters away with fire hoses or tear gas, etc. These observations warrant the belief that alternatives to lethal action remain and double effect does therefore not apply. Further, in league with Dunlop's suggestions, we can see how the sphere of possible tactics is enlarged with the advance of military technology.[28] As we now in large measure have the ability to act on our discriminatory impulse, (e.g. to bomb only a particular office, and not the office, the building housing it, and the neighborhood surrounding it) the situations in which double effect might apply—in which good and bad effects are truly inseparable—will likely be rare.
Bolstering our reservations about the applicability of the doctrine of double effect is the tactical appraisal of the enemy's action. The enemy is cynically playing a game involving his own civilian population, the agent's conscience, and the opinion of the outside world. The nature of the game is two-fold, meant first to deter, and then failing deterrence, punish, so even if the agent attacks, shelving his horror at killing noncombatants, he may still ultimately lose the tactical advantage when public outcry eventually forces him to withdraw,[29] stand-down,[30] or a third, more powerful force takes his victory from him.[31] (With regard to deterrence, it is unimportant whether the outside world actually does blame the agent, rather than the enemy, for noncombatant casualties so long as the agent suspects that he likely will be blamed.) This is to reassert that "drawing the foul" is a tactic, a deliberate enemy action, potentially as efficacious as any conventional maneuver, and not (or not only) a complication occasioned by the agent's advance. So while the principle of double effect might in theory justify noncombatant deaths in a necessary action, this new tactic might render even morally excusable actions pyrrhic.
The agent's predicament involves the following elements. The agent does not want to be a murderer of innocents. He also does not want the enemy's tactic to succeed:[32] He does not wish to lose outright, by withdrawing (to avoid jus in bello violations), and he does not want to lose the battle after winning it, by being shamed, or forced, into retreat.[33] The agent may further wish to deter the enemy from using this tactic again.[34] If, for example, he can afford to retreat or re-task an assault in a particular instance to avoid injuring human shields, he does not want this action to encourage the enemy to repeat the tactic in a situation of greater importance. In what follows, I will attempt to apply jus in bello criteria to this novel tactic by first addressing the question of whether the agent is under any special obligations since it is the enemy's action that is endangering civilians, and not his own. Arguing that the agent is still under jus in bello obligations, I will then consider how the agent should meet those obligations both when he is not immediately endangered because of the enemy action, and when he is so endangered. Finally, I will consider the implications of conflicts in which fighting well—meeting jus in bello criteria—appears to be impossible.
4.
Is the agent absolved of responsibility for noncombatants' welfare, because it is the enemy's, and not the agent's own direct action endangering them? (To be precise about the conditions: barring the enemy's adoption of one of the above-mentioned tactics, the agent's action would otherwise be considered discriminate.) Why must the agent be put at risk when his enemy is callous or fanatical? After all, the enemy may have a long history of brutalizing his people in myriad ways for reasons nominally to do with national strength and security. The agent's attempt at discrimination may exceed the care the enemy shows towards his own citizenry.
To meet this question in its most general form first: there is consensus in the just war tradition that actions malum in se (evil in themselves) are illicit regardless of circumstance. Intentionally killing civilians (apart from any military target) and rape, for instance, are never allowable. They are then not allowed in retaliation for the enemy's in kind just war violations, or anything else he does. Since there is a certain acceptance of reprisals in Western military culture (albeit usually with respect to the killing of prisoners or the use of certain weapons), ambivalence about the same subject in the literature, and perhaps the psychological tendency to accept greater and greater levels of brutality once hostilities have commenced, we will be well served to mention some of the reasons why enemy action does not justify otherwise illicit behavior. A retaliatory war crime (particularly one aimed at civilians) usually does not punish those responsible for the first crime, but rather a third party. Such action may inflame the civilian population and cause it to assemble against the agent's forces as well, an eventuality foreseen by Mao. Further, there is little reason to believe that the second crime will deter future enemy violations. (This is particularly the case when the initial crime was carried out at the behest of a dictator unmoved by retaliatory actions directed against his civilian population.) Rather, history indicates that further brutalities are more likely to harden the enemy and dispose him to increase the level of brutality.[35] This may be in no small part due to the indiscriminancy of reprisals, guided as they often are by anger, to say nothing of a blanket abandonment of just war restrictions: if a 20 civilians are intentionally killed in exchange for an attack that killed 15, the first side is then due vengeance for five, and so on.[36] Finally, if any enemy violation of the laws of war is seen as justification for reciprocal violations, or for the blanket abandonment of restraint, just war thinking would be reduced to the rule of reprisal alone, given the near inevitability of some kind of violation in any military action.
5.
According to Roger Williamson, a situation in which an enemy threatens to kill or cause to be killed civilians if attacked (rather than threatening the agent directly), is comparable to situations in which police confront kidnappers with hostages, or nurses try to calm psychotic patients. In both scenarios, it could be argued that the police and nurse are responsible for the actions of the ruthless or psychotic party, because it is reasonable to assume that the actions of the first will directly lead to the kidnappers killing the hostages or the patient killing herself or others. It is fairly clear in these examples, Williamson writes, that force ought to be used as a last resort.[37]
The agent is responsible for the things his irrational or amoral opponent does because they are in reaction to the agent's action. This responsibility is not merely consequential responsibility, in the sense that the reaction can retrospectively be understood as an indirect effect of the agent's action since the enemy reacted in a particular way to the agent's action. If I understand Williamson's point, he is saying that the nature of some situations allows the agent to conceive of another's likely (albeit irrational, callous) reaction with a degree of probability similar to that regarding the agent's own action. Given that one is responsible for the foreseeable effects of his actions, one is responsible even for secondary effects that are so foreseeably tied to those actions. Applying this mode of reasoning to a military context, Williamson concludes that the agent is morally culpable for the actions of the other if an alternative to force existed (sanctions, for instance), even if such a route does not "provide such a clear result as military victory."[38]
A just war theorist can go so far as to argue that responsibility for the relatively powerless devolves to anyone who has the power to offer protection.[39] This line of thought squares with two Augustinian principles at the core of just war thinking: that force is justified to restrain the abuse of the innocent, and that the demands of morality are always limited to the possible. Assigning the responsibility of care to whomever has power is all the more urgent in "messy" modern wars of alleged national liberation, counter-insurgency, or counter-terrorism, where noncombatants are often on the front lines, manipulated by one or both sides, often in a failed state's environment of lawlessness and predation.
To apply this notion to the subject of this paper, the agent can justify his actions neither merely by his intention to discriminate between combatants and noncombatants, nor with reference to the normal discriminatory effect of his tactics against opponents who protect their civilian populations of their own accord. If, in certain instances, the physical aspects of the battlespace are set by the enemy—to the extent that children have been encouraged to stone bunkers, sniper fire trained from residential apartments, and hostages chained to munitions factories—the moral landscape for the agent remains the same. These civilians stoning the bunkers, living amidst the snipers, and chained to the factory are "weaponized" by the enemy—turned into unconventional obstacles before the agent's conventional forces—but they remain civilians for the agent. Their rights are no more expendable than if they were far from the action.[40]
Walzer raises the question of the noncombatants' consent to remain in harm's way. "When we judge the unintentional killing of civilians, we need to know how those civilians came to be in a battle zone in the first place. This is, perhaps, only another way of asking who put them at risk…."[41] If the noncombatants chose to be present, Walzer argues, their consent absolves the agent of guilt if they die as an unintended consequence of hostilities.[42] This principle leads him to recommend that civilians be given the option of leaving a besieged city.[43]
The cases with which this paper is concerned offer more complicated scenarios for the ethicist and for the soldier. A noncombatant might choose to remain in a besieged city in order to show solidarity with its defenders, to actively aid in the city's defense, or out of reluctance to abandon his home for the lot of a refugee—rational decisions, all. However, is the decision to serve one's community by volunteering to be a martyr—for it is one's death as a noncombatant[44] that has tactical value—prima facie irrational, and as such, on par with the "choices" made by Williamson's psychotic patient? This is a question that cannot be answered here; to do so, one might investigate the criteria for martyrdom in various religious traditions.[45] If we beg for now an evaluation of the content of the choice, perhaps something can be said about the actor or the conditions in which he makes his decision. It may not be too controversial to say that children cannot consent to sacrifice their own lives. If adults (if anyone) could be said to have the right to make this decision, how then do we assess the decision for an adult to martyr himself as a passive noncombatant for the sake of his state, in an environment of pervasive state-sponsored propaganda calling on him to do the same? We have to ask if there is any morally salient difference between propaganda that urges this sort of action and that which urges citizens to join the conventional armed forces, or which glorifies those who die in service of their country. Again, I cannot answer this question here, but would suggest that it need not be answered for the purposes of this paper.
Walzer argues that noncombatants' consent to remain in dangerous areas frees the agent from blame if they are harmed in the course of hostilities (though the agent still cannot deliberately target noncombatants). I take it that this absolution is either retrospective, when the agent learns noncombatants have been killed, or prospective, in the sense that a besieger can surmise his bombardment of a city will result in noncombatant deaths. The nature of the confrontations with human shields, with sniping from residential areas, and civilian rioting, may add a nuance to the agent's prospective analysis. The conscientious agent does not want to kill noncombatants; his conscience may be soothed—the justification of double effect actually felt—when the collateral damage is only to be gauged in probabilities. There is probably a psychological difference, for instance, between acknowledging that there will probably be noncombatant casualties in an airstrike (even if only the secretarial or custodial staff in a command center) and knowing there will be, and a difference again, between knowing, and seeing these certain-to-be casualties through the lens of a gun camera. Even if these noncombatants have been "weaponized" in a sense, by the enemy's tactical manipulation of them, and even if this status change is compounded by their consent to it, civilians still look like civilians on the television screen, from the eye of a Predator drone, or through a sniper's scope. Double effect, of course, provides for certainty that harm will be done, and military discipline may well compel even the anguished soldier to move forward in his assault. Yet if jus in bello rules are adhered to in part because of the agent's needs—to retain some solidarity with his peace-time character, to distinguish, for himself, his actions from those of a sociopath—the obvious and announced deployment of noncombatants before him may erode the practical efficacy of even the most robust version of double effect.[46]
If the moral equation is potentially complicated on the one hand, by the noncombatants' consent to their use as shields and propaganda tools—arguably changing their status to combatants of some sort—and on the other, by the agent's actual confrontation with the collateral deaths he is about to incur, the tactical interest of the agent supports the voice of his conscience. Civilians who embraced their deaths as martyrdom look no different on TV than those unwillingly corralled, nor, for that matter, do those dead whom the agent anguished over before killing. The tactical use of those deaths by the enemy can still be achieved.
My point here again is that the justificatory elements of the just war tradition have a public value. A moral argument may be theoretically coherent and yet fail to win public acceptance. This is not to surrender morality to public relations, but it is to realize first, substantively, that in many cases public approval points to deep-seated values, and second, formally, that in a democracy, even morally coherent actions which do not meet with public approval are not justified.
So even if the noncombatants are in harm's way due to the direct actions of the enemy, and/or due to the adult noncombatant's own choice, the agent is obligated by jus in bello's emphasis on discrimination to alter his tactics from those otherwise recommended, if those tactics will foreseeably result in noncombatant casualties. In a siege situation, provisions ought to be taken to allow civilians to leave. Targets shielded by civilians may need to be re-prioritized, or if judged to be vital, special operations troops may be needed to separate human shields from targets. Non-lethal weapons may be necessary in cases where the human shields have consented to their role, as in the vigils held on the bridges of Belgrade during the Kosovo War, or in cases of civilian rioting.[47] Anti-guerilla operations may require police-style tactics: systematic, troop-intensive house to house searches (with care taken not to antagonize civilians and compensate them for damage, etc.), the use of informants, the imposition of curfews, etc.[48] If it can be done in a humane manner, it may be prudent to relocate civilians to a safe-zone, with safeguards in place (adequate funding, for one) to prevent Vietnam-era abuses of this practice.
6.
The previous section dealt with situations in which the agent was not in immediate danger due to the enemy's tactics. We will now consider situations in which the agent is so endangered. Robert Nozick raises the issue of human shields and what he calls "innocent threats" as possible exceptions to noncombatant immunity. He asks whether violence against either could be justified through self-defense. He begs the question of shields, but suggests with his characteristic wit that if the agent were trapped at the bottom of a well and his enemy seized an innocent person and hurled him at the agent, the agent would be justified in using his "ray gun" to disintegrate the innocent, but weaponized, person.[49] Consider a more plausible example: a civilian is intentionally infected with Ebola or smallpox and forced to run towards the enemy's trench line. Or to illustrate an "innocent shield of a threat," we can conceive of a human shield protecting, albeit unwillingly, a weapon that is directly threatening the agent (e.g. a civilian strapped to a tank or protecting a sniper nest). The shield is then incorporated into the threat—he in fact makes the weapon more menacing to the advancing soldier because of the soldier's presumed reluctance to kill the human shield. These contrivance are meant to illustrate a point by making the parameters as plain as possible: the agent must choose between his own death and using lethal force against someone normally immune to attack. The intuitively appealing argument Nozick makes is that one has the right, in war or peace, to defend himself with force sufficient to stop an attack, regardless of the motive of the attacker.
Before we rest with this, it is instructive to follow Nozick's suggestion to consider as an analogous case, an abortion to save the life of the mother. The rabbis of the Talmud in fact considered justifying a medically-indicated abortion on the grounds that the fetus is, in this situation, a rodef, an aggressor, threatening the mother's life.[50] (A rodef cedes his right not to be harmed or killed when he attempts to harm or kill someone else.) The rabbis reject this line of reasoning since the fetus obviously did not choose to threaten the mother. This is the point of contrast with Nozick: constituting a menace does not categorize a person as an aggressor. It is an attacker's choice to do evil that voids his right not to be harmed or killed.
The argument in the Talmud turns to whether the fetus is a person. Having established that the fetus is innocent, the rabbis need to determine if it is fully human, with a person's full complement of legal rights. This is the contra-positive of the point of contrast with Nozick: if the fetus is considered fully human, abortion would be tantamount to murder and would not be allowed even at the risk of the mother's life. According to Jewish law, one may not kill an innocent person to save even one's own life.
To apply this mode of thinking to Nozick's example, if an innocent person is "weaponized" he is like an aggressor, in that he constitutes a threat, but inasmuch as he has not chosen this status, he has not ceded his right not to be killed. It therefore seems that he cannot justifiably be killed. I agree with the rabbis that it is the innocence of the other party, rather than the threat he involuntarily poses, that is morally salient. Our dilemma then produces two apparently incommensurable claims, both of which I imagine meet with intuitive approval: one has a right to protect and preserve one's own life; and an innocent person cannot be intentionally killed.
There are two differences for otherwise parallel situations that might arise in combat. First, the speed and distance at which an attack or ambush occur might render the moral dilemma moot. A soldier returning fire may never see or have the time to register that his attacker is protected by a human shield. Secondly, if a soldier has a responsibility to protect the vulnerable, he also has a (sometimes competing) responsibility to protect and support his comrades. His right to preserve his own life is also a duty to preserve it for the sake of his comrades and his mission. Yet these added responsibilities do not settle the issue. As human beings, one's fellow soldiers have no greater claim to life than does an unknown civilian. We can aver to a quantitative analysis to justify our acting to protect our comrades over say, one civilian, only if we can confidently affirm that it is acceptable to murder even one innocent person for the sake of protecting others. As comrades-in-arms, one's fellow soldiers are vocationally owed protection, but then again, so are civilians; a soldier is vocationally bound to use force only against other combatants and to separate or protect noncombatants from the fighting. We encounter the same tension if we consider what soldiers owe, either as fellow human beings or as vocational actors, to the citizens of their own nation versus the noncombatants in enemy territory.
Walzer seeks to balance these competing interests in his emendation of the doctrine of double effect. It is not enough, he writes, for a soldier to not intend to harm noncombatants; he must take active steps (or so order his troops) to protect noncombatants, even at risk to himself.[51] The acceptable level of risk ought to be set at that point where mission success would not likely be compromised. With respect to tactical situations that can be planned for, this directive would practically call for weapons and tactics affording more precision, and in some cases, less lethality: the use of low rather than high altitude bombing,[52] the use of concrete- rather than high explosive-filled ordnance,[53] precision-guided rather than unguided munitions,[54] ground attack rather than bombardment, special operation troops rather than general ground troops, the use of non-lethal weapons, etc. With respect to tactical situations involving human shields, etc. which arise in the midst of operations, I would suggest that situations where a soldier or tactical commander has the time, cover, vantage point, and material options to formulate alternate tactics are prima facie those where mission success does not hinge on the killing of noncombatants. Under these circumstances, a concern for fighting well indicates that these alternate tactics should be employed.
It remains that the most discriminating tactics might still leave the agent unable to avoid jus in bello violations. If there is no way to fight but to conduct a scorched earth, or general anti-population campaign for instance, then the criteria for fighting well have exhausted themselves, and it is no longer possible to restrict the moral question to jus in bello criteria. Warfighters and warmakers then have to ask, in ways appropriate to military discipline and democratic government: is this war worth winning? This is to say that the question of justice once again becomes a political and robustly moral one, a question of jus ad bellum, rather than one linked strictly to the morality of certain tactics. Most likely, if there is no way to fight a war justly, the war itself is unjust. This may be because the insurgents truly represent the interests of the people and the agent does not,[55] (or conversely, the state and its military represent the people's interest and the insurgents do not). This may also follow for a more complicated reason, which meets the obvious rejoinder to the last point: that a people's support for a guerilla movement or the official government may merely be the result of brainwashing and fear. It is a point true to the Augustinian roots of our just war tradition, and accounts for Augustine's extreme reserve with regard to military action. When a society is as corrupted as many we could name (and Augustine of course felt that all earthly nations were corrupted), where desperate straits and pervasive propaganda have led whole nations to nihilistic despair, a just claim may lead to greater injustice when prosecuted through force.
NOTES
[1] Joint Forces Urban Operations Manual, III-27.
[2] This fact is recognized in the recent Joint Forces Urban Operations Manual. "Recent operations have shown potential adversaries may try to take advantage of the fact that US military forces will comply with the requirements of the law of armed conflict." III-8.
[3] There are normative writings on warfare in Jewish and Muslim texts as well, though the modern, secular expression of the tradition often explicitly links itself with the Augustinian, and subsequent Christian, articulations.
[4] Just cause, right authority, proportional cost, and last resort.
[5] The force of the distinction I am making between morals and tactics is that the latter can be employed in the service of good or bad ends. Tactics aimed at good ends are also moral acts, while tactics aimed at bad ends are mere tactics (which a military tactician, as opposed to an ethicist, could evaluate as good or bad). I think the proximate goodness or badness of an end can also be considered. For instance, we might be able to say that a Nazi commander acted morally in choosing tactics that did not expose his men to unnecessary risks or that protected civilians even if the ultimate end for which these tactics served was evil.
[6] Cf. Kenneth H. Wenker, "Military Necessity and Morality," Military Ethics, (Washington D.C.: National Defense University Press 1987), p.179.
[7] Therefore I am disagreeing with the view that vocational actors ought to be free from "regular" moral constraints so that they might more effectively be able to meet the (socially-authorized) goals of their vocations. This view is familiar from Luther, Hobbes, Machiavelli, and in the 20th century, neo-liberal economists like Milton Friedman.
[8] My discussion is not predicated on any particularly robust understanding of "conscience." I mean to include the term's standard intellectual and emotional associations so that the following phrases would be understood as manifestations of conscience: a soldier knows he ought not to harm civilians, he wishes to avoid harming civilians, he feels anxiety when civilians are proximate to his target, he feels relieved if they emerge unscathed, or feels anguish/sorrow if they are hurt.
[9] It should be noted that the tactic I'm describing fails if the stronger army and/or its civilian population lacks these compunctions. While Chechen rebels apparently hid amongst the civilian population of Grozny and conducted ambushes from this cover, this tactic did not forestall the leveling of Grozny by Russian forces, nor did subsequent accounts of that bombing and continued scorched earth policies by Russian forces move the sympathies of a majority of Russians.
[10] John Bulloch and Harvey Morris, Saddam's War (London: Faber & Faber, 1991), p.111.
[11] Charles J. Dunlop Jr., "Technology: Recomplicating Moral Life for the Nation's Defenders," Parameters, autmn '99, p.29.
[12] "Libyans to Form Shield at Suspected Arms Plant," Baltimore Sun 5/17/96, p.14
[13] Ignatieff, Virtual War: Kosovo and Beyond, (New York: Metropolitan Books, 2000), p.200.
[14] Ignatieff, p.195
[15] Barbara Crossette, "Children's Death Rates Rising in Iraqi Lands, Unicef Reports," New York Times, 8/13/99, p.6.
[16] Michael Ignatieff, p.28
[17] E.L. Katzenbach Jr., "Time, Space, and Will: The Politico-Military Views of Mao Tse-Tung," The Guerilla—and How to Fight Him, ed. Lt. Col. T. N. Greene, (New York: Praeger, 1962), p.14.
[18] The Fadayeen, p.27.
[19] The use of stones against tanks is enough to highlight the asymmetry and create sympathy among the world-wide audience. The death of the stone-throwers obviously increases these effects. Thanks to Erik Owens for this comment.
[20] Michael Finkel, "Playing War," New York Times Magazine, 12/24/00.
[21] cf. Paul Ramsey, The Just War, (New York: Scribner's Sons, 1968), p. 436; Walzer, Just and Unjust Wars, p.158
[22] James T. Johnson, Can Modern War Be Just?, (New Haven: Yale University Press, 1984), p.23; cf. Victoria, De Indis et De Jure Belli Relectiones, ed. Ernest Nys, trans. J. Pawley, sec. 35-7
[23] Charles J. Dunlop Jr., "Technology: Recomplicating Moral Life for the Nation's Defenders," Parameters, fall '99, p.29.
[24] Bruno Schüller, "The Double Effect in Catholic Thought: A Reevaluation," Doing Evil to Achieve Good, ed. McCormick, Paul Ramsey, (Chicago: Loyola Univ. Press, 1978), p.175.
[25] A point acknowledged by Walzer, p.158.
[26] With respect to sensitivity toward military action, the American public is probably someplace between the European public, the post-WWII generations of which are "post-military," and that of say, Russia. Cf Michael Ignatieff, The New York Times Magazine
[27] This is not to dichotomize reason and emotion. I am initially in agreement with arguments put forward by some neo-Aristotelians and analytic philosophers for the rational bases of many emotional responses. There is an argument to be made along these lines that the justificatory argument mitigating the emotional response to collateral damage is not the rational component of the experience. (Such a picture assumes a Platonic view of reason as bridling emotion like a rider does a wild horse.) Rather, it is the emotional response that is rational—assuming proper socialization, we feel pain when witnessing what reason identifies as harmful to us and to society. On this estimation, the justification is a cultural construct which benefits those with the power to launch military ventures.
[28] The sphere of the possible will be further increased over the next decade given the Pentagon's new interest in the development of non-lethal and photon-based weapons, the latter of which could disable targets (scuds, for instance) without fires (including secondary detonation) or damage to surrounding structures.
[29] Arguably, the sympathy created by images of heavily armed Israeli troops firing on stone-throwing teenagers created the conditions for the Madrid peace conference and subsequent withdrawals from occupied lands.
[30] E.g. The halt to Allied air strikes in downtown Baghdad after the Amiriyek bunker bombing.
[31] E.g. NATO, in the case of the Serbs and KLA, or the Allied consensus behind NATO forces during the Kosovo operation
[32] IDF commandos displayed an acute sensitivity to how their spring '02 offensive in the West Bank was being portrayed by and to the Palestinians. Scott Anderson, "An Impossible Occupation," New York Times Magazine, 5/12/02.
[33] The NYT documented a pattern during the early stage of the second intifada, where several hours of stone throwing would be ignored by Israeli troops in fortified positions or armored vehicles, until, apparently without any change in the tactical situation, one boy would be shot, in violation of IDF rules of engagement. I would suggest this was due to one or both of the following: the frustration I describe above, and an informal policy of making the Palestinians pay a price for their harassment of the outposts. Michael Finkel, "Playing War," New York Times Magazine, 12/24/00.
[34] Paul Ramsey, p.428; James T. Johnson, Can Modern War Be Just?, (New Haven: Yale University Press, 1984), p.58
[35] cf. Johnson, p.111; Richard A. McCormick S.J., "Ambiguity in Moral Choice," Doing Evil to Achieve Good, ed. McCormick, Paul Ramsey, (Chicago: Loyola Univ. Press, 1978), p.42
[36] The lack of moral grounds for this behavior, as well as its escalatory nature, is encapsulated in the fundamental stupidity of the justifications given by both sides in the second intifada. A car bomb in Jerusalem is justified by Hamas as retaliation for the assassination of one of its operatives, which was justified by the Israelis for a car bomb in Tel Aviv which was justified as retaliation for civilians killed during an Israeli incursion, etc. Since the retaliation does not yield the exact number of casualties of the preceding attack, and especially with regards to Palestinian actions, the target's vocation(s) does not even necessarily match the vocation(s) of those being avenged, i.e. a soldier for a soldier, a mother for a mother, the positing of a rationale seems pointless. Why not pick an earlier outrage as the justification?
[37] Roger Williamson, "Engulfed in War: On the Ambivalence of the Just War Tradition during the Gulf War," Engulfed in War, ed. B. Hallet, (Honolulu: Spark Matsunage Institute for Peace, 1991), p.65.
[38] Williamson, p.66.
[39] Johnson, p.22.
[40] Here I am in disagreement with Paul Ramsey, who takes a hard line with respect to civilian rights in guerilla situations. The insurgents have violated the rule of discrimination by not only hiding amongst civilians, but in enlisting them in the struggle. As such, civilians in these contexts may be considered combatants and exposed to force subject, as is force directed at the insurgents themselves, to due proportion. Cf. Ramsey, p.435-436. Daniel Statman argues along similar lines with respect to the first intifada. Daniel Statman, Jus In Bello and the Intifada," Philosophical Perspectives on the Israeli-Palestinian Conflict, ed. Tomis Kapitan, (Armonk, NY: M.E. Sharpe, 1997), p. 146.
[41] Walzer, p.159
[42] Walzer, p.169
[43] Walzer, p.168
[44] While a child throwing a stone at a soldier is engaged in a form of combat, it is clearly a symbolic, militarily-trivial form, especially when the soldiers are in armored vehicles or in bunkers. The child is still, as such, a noncombatant. I would argue their age-linked noncombatant status is overridden only in situations where they are armed with weapons that pose a serious threat to soldiers. The awful efficacy of a firearm determines the identity of anyone holding it without remainder.
[45] For example, it is dubious that passive acceptance of one's death when escape or struggle is possible, solely to serve the interests of the State would be permitted in the Jewish tradition. Preservation of one's life trumps all other obligations save for those prohibiting murder, adultery, and idolatry. One might wish to study the rabbinic commentary on the siege at Masada for insights into this matter.
The Christian tradition is obviously rich with examples of and teachings regarding martyrdom. Catholic moral teaching holds that it is not permitted to commit one evil to avoid another. The putative martyr's action would be taken to be illicit, I take it, if his action was understood as suicide, and not mere passivity in the face of aggression.
Ahmad Ibn Naqib al-Misri argues that one who attacks the enemy with the certainty that he will die can be considered a martyr rather than a suicide. One may not attack if his attack will have no impact on the enemy. Al-Misri, The Reliance of the Traveler: A Classic Manual of Islamic Sacred Law (Evanston, Ill.: Sunna Books, 91), 718, sect. Q2.4 (4) For discussion, cf. Adam L. Silverman, "Just War, Jihad, and Terrorism," Journal of Church and State, p.83 If this is the case, one might argue that offering oneself up as a human shield, or harassing troops with the hope of provoking a lethal response would not be permissable considered unto itself, but might be acceptable if it is believed that one's death will have the tactical efficacy I've suggested above.
[46] Further, psychological stress has been shown to have an adverse effect on operations. Joint Force Manual for Urban Combat, III-25.
[47] Statman defends the IDF's widespread use of rubber-coated bullets, tear-gas, and beatings during the first intifada as preferable to the use of lethal force. Statman, p.148. For statistics on Palestinian casualties cf. James A. Graff, "Targeting Children," Philosophical Perspectives on the Israeli-Palestinian Conflict, ed. Tomis Kapitan, (Armonk, NY: M.E. Sharpe, 1997)
[48] Julian Paget, Counter-Insurgency Campaigning, (London: Faber & Faber, 1967), p.168.
[49] Robert Nozick, Anarchy, State, and Utopia, p.35.
[50] Sanhedrin, 72b, cf. Oholot 7,6.
[51] Walzer, p.157.
[52] NATO has rightly been criticized for depending exclusively on high altitude bombing in the Kosovo campaign, for fear that low-flying aircraft, while capable of more accurate and more efficacious assaults, would be vulnerable to anti-aircraft fire. Cf. Ignatieff, Virtual War.
[53] Allied warplanes were equipped with concrete-filled bombs in 2001 to limit civilian casualties in the Iraqi "No-Fly Zones."
[54] With the added cost of the PGMs factored into the calculus of probable mission or campaign success, to answer a question asked by Dunlop.
[55] Walzer, p.196.