Tom Hurka on Collateral Damage and Human Shields

war

What’s Wrong? is grateful to Tom Hurka (University of Toronto) for this original and thought-provoking submission.
(image: war)

My topic is an abstract issue in the morality of war that people disagree about, leading to further sharp disagreements about, for example, the morality of Israeli military tactics in Gaza and South Lebanon. 

Both the morality and the international law of war forbid attacks aimed at civilians, but they don’t always forbid acts that harm and even kill civilians if that’s an unintended side-effect of force directed at a legitimate military target. If you couldn’t hit the military target without killing the civilians, and you weren’t trying to kill them, their deaths are, in the current phrase, “collateral damage” and may be permitted. It’s not that all collateral killing of civilians is allowed. There’s, among other things, a “proportionality” requirement that says the side-effect harm to civilians mustn’t be excessive compared to the military benefit you expect from your action. If a successful attack on a facility that’s essential to a genocidal enemy’s war activities kills two civilians, it’s proportionate and therefore permissible; an attack that eliminates a minor facility at the cost of a thousand civilian lives isn’t.

Deciding exactly how many civilian deaths are excessive relative to a given military action is extremely difficult, and no one has a precise algorithm for doing so. The topic I’ll discuss arises earlier and concerns which civilian deaths get into the proportionality calculation in the first place, or how much they count for in it.

Imagine that an unjust enemy has intentionally placed a military installation, such as a command centre or rocket launcher, in a civilian neighbourhood, or has intentionally placed civilians near it. He’s using the civilians as shields, hoping either that their presence will deter you from attacking the installation or that, if you do attack, their deaths will win additional sympathy for his cause. Now, using civilians as shields is forbidden by both the morality and the law of war, so what the enemy has done is wrong. But he has done it, and you now can’t target the installation without killing the civilians. Does the fact that they were wrongly placed there affect the proportionality of your attack, or make harms to them count less against your act’s being proportional than if they got there some other way?

One view says this fact doesn’t make any difference. What matters is just how many civilians your attack will kill; how they got to be near your target – even if they were forcibly and unjustly placed there – is irrelevant.

A diametrically opposed view says it makes all the difference. Since your enemy wrongly placed the civilians near the installation, the responsibility for their deaths should you attack it isn’t yours; it’s entirely his. A US artillery commander seemed to take this view during the 2003 Iraq War. After his unit continued to fire on Iraqi troops after they retreated into the city of Nasiriyah, he “placed responsibility for any civilian deaths on the Iraqi soldiers who drew the marines into the populated areas,” saying “We will engage the enemy wherever he is.”

An intermediate view says how the civilians got there makes some but not all the difference, so their deaths count somewhat less against your attack’s proportionality than if they were innocently or accidentally there. An analysis of the laws of war by the British military takes this line, saying “if the defenders put civilians or civilian objects at risk by placing military objectives in their midst or by placing civilians in or near military objectives, this is a factor to be taken into account in favour of the attackers in considering the legality of attacks on those objectives.”

In deciding between these views we have to remember that the assignment of responsibility isn’t zero-sum; it’s not as if, to the degree the enemy is responsible for the shields’ deaths, you’re not responsible. But this leaves the choice between the three views open, and which we make can dramatically affect how we assess particular military actions, such as the Israeli actions mentioned above.

Israel’s enemies in these actions, Hezbollah in south Lebanon and Hamas in Gaza, are reported to have often located their military installations among civilians, and this is in fact a frequent tactic of insurgent or irregular forces. Some critics of Israel, tacitly assuming the first view, note only the large number of civilians its soldiers killed and conclude that its actions were grossly disproportionate and even a war crime. Some defenders, taking the second view, say the responsibility for the civilians’ deaths belongs entirely to the Hezbollah or Hamas personnel who placed them in harm’s way; on this view Israel’s actions may be largely proportionate. And those who take the third view may give an intermediate or mixed assessment, depending on how much they discount the shields’ deaths.

Unfortunately, the views are, at least for me, hard to choose between. Favouring the first is the thought that we have to make our moral choices in the world as we find it and not ignore features of our choice situation because we disapprove of how they came about. Favouring the second is the thought that evil agents shouldn’t be morally protected by their evil actions; it shouldn’t be morally harder to fight against someone the morally worse he behaves. And favouring the third is the thought that there’s something to both of these considerations, so both should be given some moral weight.

It’s not that we never let facts about others’ wrongful choices affect our assessment of proportionality. Imagine that we know that if we start and win a war against an unjust enemy some fanatics on his side will, after the war is over, launch suicide attacks on our civilians. Ignore for now the deaths of those civilians and ask: does it count against the proportionality of our fighting the war that it may lead to the deaths of suicide bombers who would otherwise have lived? Could the fact that they’ll die in unjust attacks make our fighting disproportionate? That’s hard to believe, and the obvious reason why is that by wrongly deciding to launch the suicide attacks they make themselves, and not us, responsible for their deaths.

This example differs from the one involving shields because the bombers’ choices impose harm on themselves and also come later in time than our military action. But we can eliminate the second difference by considering a similar choice that comes before we act, and still something close to the same point remains. Imagine now that civilian supporters of an unjust enemy have voluntarily placed themselves near one of his military installations, again in the hope of deterring us or winning sympathy for his side. That our attacking the installation will mean killing them hasn’t lost all its relevance to proportionality; if we can either attack this installation or another of equal military importance that has no civilians nearby, we should attack the second installation. But it’s surely lost some of its relevance. If we have a choice between attacking this installation and attacking one with the same number of civilians nearby but there innocently or by accident, we should attack the first installation. And the reason again is that by voluntarily placing themselves near a military target, the civilians have taken some of the responsibility for their deaths upon themselves and removed it from us.

This example still differs from the one involving shields because the civilians’ choice exposes them, and not someone else, to the risk of death. This, it can be said, is a very large difference. From the fact that someone’s wrongful choice can lower the moral barriers to an act that causes collateral harm to him, it doesn’t follow that his choice can lower the moral barriers to an act that causes serious harm to others.

This is true; the conclusion doesn’t follow. But the conclusion may still be true, if not in the extreme form of the second view, on which the shields’ deaths don’t count at all against the proportionality of attacking the installation, then in the more moderate form of the third view, in which they count just somewhat less. But it’s here that I find it difficult to decide which view is correct, or exactly what’s allowed by way of action against a military target that an enemy has wrongly surrounded with civilians.

This issue, will, however, often be with us, especially if a larger proportion of military actions come to be directed against forces like Hamas, the Taliban, and the Islamic State that aren’t the formal agents of a recognized and functioning state and that, like many such forces, regularly locate themselves or their military installations within a civilian population. On one view of the moral effect of others’ wrongful choices some attacks on those installations will be wrong, because disproportionate, that on another view are morally permitted.

 

3 responses to “Tom Hurka on Collateral Damage and Human Shields

  1. Tom, I think you’re using the technical term “human shield” improperly, and that this is causing your analysis to be misaimed. As far as I can tell human rights organizations genearlly use “human shield” to refer to a civilian who combatants have forced to remain near their own military installation for the purposes of deterring an attack on the objective. For instance, Article 51(7) of the 1977 Additional Protocol I to the Geneva conventions reads in part “The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.” This is different from the case where the military sets up near civilians for whatever reasons but does not try to prevent them from leaving.

    By this definition, repeated investigations have shown that the Palestinians did not use civilians as human shields; they did not force civilians to remain near their military installations. Israeli forces, however, have repeatedly used Palestinians as human shields in this technical sense; forcing a child at gunpoint to search a bag suspected of containing explosives, forcing children to stand in front of Israeli military vehicles, forcing civilians to enter buildings that the IDF was searching before or with the Israeli soldiers, forcing families to stay on the ground floor of their home while the Israeli military used the rest of the house as a military base and sniper position, and so on. It seems odd to write an article considering whether it is permissible for Israel to launch operations that kill civilians that Palestinians are using as human shields, when in fact it is the Israelis who are using human shields in this conflict.

    [The information in the last parapgraph is all available in the wikipedia article on Human Shields. Wikipedia is Wikipedia, I realize, but the links to sources from human rights organizations check out.]

    Now, perhaps this is merely terminological, and sometimes people do use “human shield” to refer to any case in which military forces set up near civilians. So perhaps we could just replace the phrase “human shield” with “civilian near whom military forces have set up.” But even so, it is not clear that in most of the cases in which Israel has inflicted civilian casualties that it has done so because military forces have set up near them. On the multiple occasions on which the IDF killed civilians in UNRWA schools, the only one on which non-IDF sources were able to corroborate that the IDF had been targeting a military target was the Rafah A strike, which was directed at a motorcycle that was driving in front of the school at the time. (Hamas did store rockets in unoccupied UNRWA schools on some occasions, but that would not make every UNRWA school into a legitimate target.)

    There is also the question of why the civilians remained near Palestinian military forces when they did. In some cases civilians stated that they saw no point in leaving the areas that the IDF had told them to leave, because the IDF would also shell supposed safe areas. And given the density of the urban areas in which the fighting was taking place, it is not clear that it would have been feasible for the military forces to set up in an area that was far enough removed from civilians to ensure the safety of all civilians from shelling and rocket attacks directed at the military forces.

    Your arguments, of course, don’t depend on the specific details of what actually happened; we can consider the generally moral evaluation of attacking a military target that the enemy has wrongly surrounded with civilians irrespective of whether we judge that to be an accurate description of what has happened in the particular example under discussion. But you do conclude by considering the relevance your arguments this might have for war on forces like Hamas, which you describe as locating its military installations within a civilian population. It might tend to lead to different conclusions if we framed the question as how it is permissible to fight an invasion of a dense urban area, where the opposing military forces would have to go to extreme lengths to set up away from any civilians.

    And, more importantly I feel, we should be very wary of accepting Israeli spin on their most controversial actions–that it is Hamas that primarily uses “human shields” in the Israeli-Palestinian conflict; that the killings at UNWRA facilities came about because Hamas had deliberately set up military installations near those facilities, and that the strikes were inevitable collateral damage–without having thoroughly investigated whether it holds up. Many reports from human rights agencies suggest that the problem you discuss, of an attack on a military installation that kills civilians as an inevitable side-effect of the use of human shields, does not accurately describe most of the civilian casualties caused by the IDF in its operations. Critics of the actions of the Israeli military need not be tacitly assuming the first view you discuss; often they are aware of the ways in which IDF tactics do not fit the case under discussion here.

    Matt Weiner
    Department of Philosophy
    University of Vermont

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  2. Matt,

    Thanks for the comment. I confess I wasn’t using “human shield” in a terribly careful way, but I’d be reluctant to use it as narrowly as you propose. The sentence you quote from Additional Protocol I 51 (7) is preceded by another that says “The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to impede military operations.” There’s no restriction there to “forcing” or “directing”; the point seems more general. And the British analysis I quote talks, in a paragraph about “shields,” of cases where “the defenders put civilians or civilian objects at risk by placing military objectives in their midst”; again nothing about forcing.

    The cases where the civilians are left free to leave are, I agree, not ones involving involuntary shields. If the civilians choose to stay, some of the responsibility for any harms they suffer are theirs. (This assumes they can leave.) But it’s not as if the only possibilities are that and forcing. A common case, I would have thought, is where enemy forces locate themselves among civilians without forcing them but the civilians don’t have time to move away. This would have been the case in the Nasiriyah example I give: the Iraqi forces move into the town, the American artillery bombards the town — which it can’t do entirely accurately — and the civilians can’t get out before the bombardment happens. I think that kind of case isn’t uncommon — a rocket launcher is set up in a town but not all inhabitants know about it — and I don’t think it’s morally different from ones involving forcing. The civilians are near the military objective, the enemy wrongly made that the case, and the civilians can’t get away. I don’t see that the absence of forcing or direction makes a moral difference.

    You raise an important issue when you mention defence in urban areas where there’s no alternative to placing a military objective among civilians. (There’s no civilian-free place.) Then the enemy’s act may not be wrong, provided there wasn’t an alternative location with fewer civilians. That’s a very important consideration and one I ignored.

    I was, as you rightly see, interested mainly in a general philosophical question rather than the details of the Israeli-Palestinian conflict. Maybe it would have been better not to mention that, given the competing narratives and many disputed claims. But you could read the post as about the following question: would a common defence of Israeli actions have merit if their account of the facts was accurate? I think the question is worth asking even if that account is misleading.

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  3. Very informative and interesting conversation. I do want to point out, however, that even if it’s true that Hamas can’t find a civilian-free space in Gaza from which to attack Israel, it’s not as though it’s compelled to attack – especially since it deliberately attacks Israeli civilians. It would be different if all its attacks were responses to Israeli attacks, *and* were aimed at Israeli military installations. But neither is the case.

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