This post by Kelley Vlahos at The American Conservative looks at attempts to assess the number of civilians killed by U.S. “drones” in Pakistan and Yemen. She notes that the Obama administration has not exactly been forthcoming with estimates of the number of civilians killed–either because they aren’t tracking it or aren’t willing to make the assessments public. We’ve also been informed recently by the New York Times, that the administration may have a somewhat unorthodox method for deciding who counts as a “civilian.” (According to Vlahos, a watchdog group, the Bureau for Investigative Journalism, has estimated about 200 civilian casualties.)
This official reticence isn’t new. Although our leaders frequently tout our military’s efforts to minimize “collateral damage,” the U.S. military has long refused to offer body counts of civilian casualties from its wars (see, e.g., this article on efforts to get the Pentagon to release an estimate of civilians killed in the Iraq war). But this raises anew a question I’ve had for a long time: if we don’t know how many civilians have been killed in a particular war, how can we know whether the war is just?
To offer some context, most versions of what is usually referred to as “just war” theory (which is not really a single theory, but a family of theories) contain a principle of non-combatant immunity. This doesn’t mean that non-combatants* can never be killed, but that they may never be directly targeted. It’s only permissible, according to this principle, for non-combatants to be killed when this is an unavoidable side-effect of attacking a legitimate military target. Or, to put it another way, the principle forbids inflicting harm on non-combatants as an end in itself or as a means to another end.
However, this principle is qualified by another principle: the principle of proportionality. The non-combatant immunity principle doesn’t provide a blank check for inflicting harm on non-combatants so long as you’re not intentionally targeting them. It’s constrained by the principle of proportionality, which says that the good effect one aims to achieve must outweigh, or be greater than, the damage to noncombatants that one foresees, but does not intend. Moreover, the principle requires that there not be another available option that would achieve the same benefit with less collateral damage.
So, to summarize, collateral damage (i.e., harm or killing of non-combatants) can be permissible only if (1) it is an unintended (though possibly foreseen) side-effect of attacking a legitimate target and (2) the good to be achieved outweighs the evil of the collateral damage.
What seems to follow from this, however, is that, in order to know whether these conditions have been met, one would have to know, at least with some degree of accuracy, what the extent of the “collateral damage” was. Otherwise, how can we assess whether the good achieved outweighed the bad of the harm to non-combatants? (This assumes that the first condition is met: that non-combatants were not directly targeted; if that isn’t the case, then no amount of proportionate good can “make up” for the violation of the immunity principle, at least according to most versions of JWT.**)
And there’s the rub: if our government isn’t tracking the number of civilian deaths in a particular war, then they can’t know whether conditions (1) and (2) have been met. Or, alternatively, if they do know and they’re just not telling us, then we aren’t in a position to know whether they’ve been met. But without that knowledge, it’s hard to see how we can be assured that the war is being carried out according to widely recognized principles of just war.
*There are legitimate debates about who exactly counts as a non-combatant (e.g., suppliers of weapons), but wherever we end up drawing the line, there are clearly some groups that fall on the “non-combatant” side (e.g., children).
**The first principle acts a kind of deontological constraint on the conduct of war, while the second more closely resembles a consequentialist principle. So a pure consequentialist would likely reject (1) as absolutely binding (Michael Walzer, a noted theorist of just war, rejects (1) for cases of what he calls “supreme emergencies”).