Killing Non-Combatants: Easy Cases and Hard Ones
So, now everyone is thinking about the question "under what conditions is it permissible to endanger or kill non-combatants?"
I expect that there are some fairly general principles about which we all agree, and that our disagreement is about the application or extension of those principles to complex cases.
For example, I expect a fair amount of agreement about the following:
[1] A is trying--unjustly--to kill B. B responds by trying to kill A, which is obviously permissible. However, innocent bystander C--who does not know B, nor endorse his actions, and who is in no way trying to intervene--accidentally interposes himself. Now A cannot kill B without killing C. Here it is impermissible for A to kill C (and, of course, B).
[2] A is trying--unjustly--to kill B. B responds by trying to kill A. However, C--a confederate of B who aids and abets B at every opportunity because he, too, shares the goal of unjustly killing A--has been standing by and, at the crucial moment, interposes himself between A and B. Here it is permissible for A to kill C (and, of course, B).
Now, supposing that I'm right that we do not disagree about these cases, what we are probably disagreeing about is the intermediate cases, like the following one which is, obviousy, not selected for discussion arbitrarily:
[3] A is trying--unjustly and intermittently--to kill A. A has a right to respond by trying to kill B, but it is unclear whether/when he will do so. C has some sympathy with A, mistakenly believing that his efforts to kill B are not entirely misguided and unjust. C lives in the same neighborhood as A, vaguely--but only vaguely--recognizing that one of the reasons A lives there is because the presence of civilian targets makes A harder for B to kill. This arrangement has evolved slowly, and there was no time at which C consciously decided to become a human shield for A. After one of A's attempts to kill B, B gets an opportunity to kill A, but C unwittingly interposes himself, making it impossible to kill B without killing C. Is A permitted to kill C in this case?
The answer here is, obviously, not so easy.
One response might be to say that C is n% culpable in [3], and, thus, that A is permitted to take action to kill B that has an m% chance of killing C where m is less than or equal to n.
But I don't know. My guess is that the guys at West Point have something interesting to say about this.
So, now everyone is thinking about the question "under what conditions is it permissible to endanger or kill non-combatants?"
I expect that there are some fairly general principles about which we all agree, and that our disagreement is about the application or extension of those principles to complex cases.
For example, I expect a fair amount of agreement about the following:
[1] A is trying--unjustly--to kill B. B responds by trying to kill A, which is obviously permissible. However, innocent bystander C--who does not know B, nor endorse his actions, and who is in no way trying to intervene--accidentally interposes himself. Now A cannot kill B without killing C. Here it is impermissible for A to kill C (and, of course, B).
[2] A is trying--unjustly--to kill B. B responds by trying to kill A. However, C--a confederate of B who aids and abets B at every opportunity because he, too, shares the goal of unjustly killing A--has been standing by and, at the crucial moment, interposes himself between A and B. Here it is permissible for A to kill C (and, of course, B).
Now, supposing that I'm right that we do not disagree about these cases, what we are probably disagreeing about is the intermediate cases, like the following one which is, obviousy, not selected for discussion arbitrarily:
[3] A is trying--unjustly and intermittently--to kill A. A has a right to respond by trying to kill B, but it is unclear whether/when he will do so. C has some sympathy with A, mistakenly believing that his efforts to kill B are not entirely misguided and unjust. C lives in the same neighborhood as A, vaguely--but only vaguely--recognizing that one of the reasons A lives there is because the presence of civilian targets makes A harder for B to kill. This arrangement has evolved slowly, and there was no time at which C consciously decided to become a human shield for A. After one of A's attempts to kill B, B gets an opportunity to kill A, but C unwittingly interposes himself, making it impossible to kill B without killing C. Is A permitted to kill C in this case?
The answer here is, obviously, not so easy.
One response might be to say that C is n% culpable in [3], and, thus, that A is permitted to take action to kill B that has an m% chance of killing C where m is less than or equal to n.
But I don't know. My guess is that the guys at West Point have something interesting to say about this.
posted by Winston Smith at
7:58 AM
2 Comments:
Two (comparatively) quick points:
1) I agree with what you've laid out, but I think that the difficulties have as much to do with the question of the proper actions to take in circumstances of imperfect information as they do the application of firm principles to complex factual situations. Even if we can feel comfortable ruling on the morality of particular situations, in practice, I think it's very unlikely that a military force is going to be able to draw lines between the situations you describe -- certainly this is going to be very hard when it's a question of bombing campaigns!
My intuition is that these issues of default presumptions and burdens of production and proof are likely to be the biggest areas of disagreement -- I think there's room for a broad variety of viewpoints here, from the extreme of "the attack is illegitimate so long as you can't prove that it's a legitimate response" to "the attack is legitimate so long as there's a greater than half chance it's legitimate." (Personally, I think that once the chance goes below 50%, one can't plausibly argue for legitimacy -- much as how you can't win a trial with less than a preponderance of the evidence -- but possibly one could make an argument).
2) My understanding is that the legal doctrine of collateral damage, at least, is much more nebulous than one might at first suppose (though I should admit that my understanding is in large part based on a draft paper on this subject written by a classmate, which I've had the opportunity to read -- I haven't actually done the research myself).
The Protocols Additional to the Geneva Conventions codify the relevant principles as distinction (must target legitimate military objectives, with a corresponding prohibition on weapons that cannot be so specifically targeted), necessity (attacking the military target must provide some definite military advantage to the attacking power), proportionality (military benefits must outweigh the likely loss of civilian life),
and humanity (a general commitment to minimizing gratuitous harm). All of these must be met for any contemplated attack. Many nations, including the U.S., aren't signatories to the Protocols Additional (for a variety of reasons, few of which have to do with collateral damage), but the above principles are widely accepted as part of the customary law of war, and in fact U.S. military doctrine tracks them very closely.
These are all pretty vague, and as a matter of law and policy, they remain so -- for example, there's a big fight over whether and in what circumstances admittedly civilian targets (factories, radio stations, etc.) satisfy the rule of necessity. In Vietnam, the U.S. discovered many of the soft spots in this framework, but for one reason or other I'm not aware of any systematic attempts, within the U.S. or internationally, to update the framework and figure out how it applies to insurgencies and other guerrilla or terroristic-type belligerints.
Despite this vagueness, my personal understanding is that the U.S. Army at least takes these principles incredibly seriously -- through my work, I had the opportunity to talk with an Army Reserve JAG who'd been in Iraq, and he related an anecdote about receiving a call from a commander in the field whose troops were being shelled by several mortar-teams who were firing from a bridge. There were no civilians around, but attacking the mortar-teams would probably wind up destroying the bridge, so the commander, *in the middle of the firefight*, called his legal advisor to make sure that shelling back wouldn't be impermissibly excessive. It's a ridiculous question -- especially to be asking while you're getting shot at! -- but the Army had very thoroughly drilled compliance with the rules on collateral damage before going into Iraq. I do have some complaints about their training on other aspects of the law of war, but this is one area where I think the U.S. military is incredibly committed to the relevant principles.
Holy crap, Mike, that's unbelievably interesting. Coupla things:
1. Just goes to show, for most questions that might arise here, somebody else has already thought them out more carefully. I knew my post was amateur hour when I posted it, but sometimes you get comments like this, so it's worth displaying your ignorance for the payoff.
2. Have you posted this stuff on your blog?
3. My apologies, but since I don't read many blogs anymore, I didn't realize you had one. But this answer earns you a place on my almost-never-updated blogroll.
4. That story about the commander calling for legal advice in the middle of a firefight literally brought tears to my eyes it was so great. There are various things that might have been going on there...some bad, some just downright inspiring. Whole post needed for that one.
Thanks again.
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