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.