The fog of (just) war: more on just war and the “kill list”

To follow up a bit on the last post, here’s a good piece published in Boston Review by Georgetown law professor David Luban, looking at the “drone war” more broadly in the context of just war theory.

Luban homes in on some of the thornier issues surrounding the targeted killing program: distinguishing between combatants and non-combatants, the question of proportionality, and whether “the decision-making process is based on a genuinely skeptical, probing structure, with a heavy burden of proof on those proposing a killing and an institutionalized ‘devil’s advocate’ to argue against each and every deadly ‘nomination.'” Despite recent reports in the New York Times and elsewhere, “the process still remains essentially shrouded in fog.”

Assuming that it’s permissible to use force in self-defense, Luban says, “targeted killings” aren’t necessarily immoral per se. “If anything, targeted killing is better than untargeted killing, which the laws of war call ‘indiscriminate’ and a war crime.”

Among this welter of arguments about targeted killing, the genuine issues of principle are whether self-defense requires it and proportionality permits it. The question of where the zone of combat ends and civilian rules begin is important, but it is a question of line-drawing, not of moral principle. If self-defense is a just cause of war, and if killing is necessary for self-defense (a big if), then targeted killing is permissible–provided that it targets only enemy fighters, keeps civilian casualties low, and actually does more good than harm in defending ourselves.

But this last one is a “far from a settled question,” Luban says, because the drone war may be creating more terrorists than it kills due to, for example, the radicalizing of Yemenis angered by the drone attacks. Add to this worries about the “opacity and unaccountability” of the program, and it’s far from clear that it is, on balance, a good idea.

Can we know if our wars are just?

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”).

Justice, just war, and the killing of Osama bin Laden

This story asks whether it’s wrong to celebrate bin Laden’s death. It quotes, among others, moral philosopher Christine Korsgaard who says:

“Most people believe that the killing we do in war is justified as the only way to disable an enemy whose cause we believe to be unjust…. And although it is more controversial, many people believe, or at least feel, that those who kill deserve to die as retribution for their crimes.

“But if we confuse the desire to defeat an enemy with the desire for retribution against a criminal, we risk forming attitudes that are unjustified and ugly — the attitude that our enemy’s death is not merely a means to disabling him, but is in itself a kind of a victory for us, or perhaps even the attitude that our enemy deserves death because he is our enemy.”

This is an important point. Just war theory–at least in its modern incarnations–holds that the use of force is justified only up to the point of stopping an aggressor. It’s not about meting out justice in the sense of giving someone what they deserve. If it’s possible to stop an act of aggression without killing the aggressor, then just war theory requires we use only the minimum amount of force required to do that. Strictly speaking, any killing is supposed to be an unintended (albeit often forseeable) side-effect of using only the force necessary to disable the enemy.

Of course, in practice it’s often very difficult to determine just where this line is between necessary and excessive force. But observing the distinction would certainly, I think, call into question many of the tactics of modern war. And whether the killing of bin Laden in particular was justified depends on whether it was possible to apprehend or otherwise disable him without killing him. It seems unlikely that we’ll ever know the truth of that for sure. Therefore, from this perspective, we’re not really in a position to say with 100 percent certainty that “justice was done” in the killing of bin Laden.

UPDATE: Just to clarify, I’m not saying that bin Laden didn’t “deserve to die” in some moral sense. What I’m saying is that just war theory, as Christine Korsgaard points out, isn’t about punishment of the guilty so much as setting out the proper conditions for using force to protect the innocent and repel aggression. The question of justice in war is distinct from the question of justice as it relates to bin Laden’s personal guilt and what punishment might be appropriate.

Will the real Reinhold Niebuhr please stand up?

There’s been much made of the “Niebuhrian” nature of President Obama’s Nobel acceptance speech: its frank recognition that dealing with evil sometimes requires the use of force; its rejection of non-violence; its anti-utopianism with respect to ending violent conflict, etc. And that’s all fair enough.

But there was one key Niebuhrian theme that was conspicuously missing: deep skepticism about our own motives coupled with an appreciation of our virtually bottomless capacity for self-deception. “Realism” in the Niebuhrian sense isn’t just about recognizing intractable evil without, it’s also about being alert to the even more insidious evil within. Nations, Niebuhr argued, are almost necessarily self-interested, an egoism bolstered by the qualified altruism that devotion to the nation calls forth. And this egoism inevitably manifests itself in hypocrisy, particularly when nations present themselves as bearers of universal values (sound familiar?).

Here’s Niebuhr:

Perhaps the most significant moral characteristic of a nation is its hypocrisy. We have noted that self-deception and hypocrisy is an unvarying element in the moral life of all human beings. It is the tribute which morality pays to immorality; or rather the device by which the lesser self gains the consent of the larger self to indulge in impulses and ventures which the rational self can approve only when they are disguised. One can never be quite certain whether the disguise is meant only for the eye of the external observer or whether, as may be usually the case, it deceives the self. Naturally this defect in individuals becomes more apparent in the less moral life of nations. […]

The dishonesty of nations is a necessity of political policy if the nation is to gain the full benefit of its double claim upon the loyalty and devotion of the individual, as his own special and unique community and as a community which embodies universal values and ideals. The two claims, the one touching the individual’s emotions and the other appealing to his mind, are incompatible with each other, and can be resolved only through dishonesty. This is particularly evident in war-time. … In other words, it is just in the moments when the nation is engaged in aggression or defense (and it is always able to interpret the former in terms of the latter) that the reality of the nation’s existence becomes so sharply outlined as to arouse the citizen to the most passionate and uncritical devotion toward it. But at such times the nation’s claim to uniqueness also comes in sharpest conflict with the generally accepted impression that the nation is the incarnation of universal values. This conflict can be resolved only by deception. (R. Niebuhr, Moral Man and Immoral Society, 1960 Scribner’s edition, pp. 95-96)

When the President says, for example, that the U.S. has helped underwrite sixty years of global security without mentioning Vietnam (a war Niebuhr opposed), Cambodia, Central America, or other places where American military power was perhaps not so gratefully received, he’s doing exactly what Niebuhr is describing here: identifying the interests of the U.S. with the universal aspirations of mankind. He may be able to do it in a more subtle and nuanced way than his predecessor, but it’s not a fundamentally different claim. This doesn’t mean that President Obama is wrong when he says that war is sometimes justified, but he is wrong to omit the point that our own motives must be subjected to the most rigorous scrutiny and skepticism. Particularly, Niebuhr would say, when economic elites exert a disproportionate influence on policy-making. Again: sound familiar?

On killing innocents

Two links:

Michael Jackson’s Death Means Little to Me

McNamara’s Evil

As I’ve pointed out before, one condition of any war being “just” according to traditional criteria would require a rigorous accounting for all the innocent lives lost and an equal weighing of those lives against any purported good that the war accomplishes. (And that’s assuming that all those deaths are unintended side effects of legitimate military operations.) Can we honestly say that our national war policies meet that standard?

Just war at the JLE

Always a timely topic (unfortunately): the Journal of Lutheran Ethics has a review symposium of Gary Simpson’s War, Peace & God: Rethinking the Just War Tradition.

Tit for tat

One of the most unfortunate (and oft-observed) aspects of the blogosphere is that, in discussing events that require actual expertise to understand, genuine insight tends to get drowned out by soapbox editorializing. Nowhere is this more true than in the case of the Israeli-Palestinian conflict: whenever there’s a flare-up of hostilities, every blogger and his brother instantly becomes (in his own mind, at least) an expert on the conflict, pronouncing authoritatively on the complex history, culture, and politics of the region.

With that disclaimer in mind, here are some thoughts, mostly tangential to the main argument:

–“Proportionality” has not been given a precise definition in many of the debates about the rocket attacks originating from Gaza and the Israeli response. It can mean that the response is roughly equivalent to the initial attack, but this is neither particularly useful, nor is it the sense of “proportionality” usually employed by Just War theory. In JWT, proportionality usually means one of two things: 1) that the means are fitted to the ends; that is, that one uses only the minimum amount of force necessary to achieve one’s (legitimate) goals or 2) that the evil–destruction, loss of life, etc.–that results from one’s actions must be less than the evil that those actions are aimed at avoiding. Interestingly, proportionality in the second sense implies that all loss of life (at least of innocents) counts equally in discerning proportionality. There is a golden rule aspect to the reasoning here: in weighing the evils likely to result from going to war versus not going to war, all loss of innocent life (whether “enemy” life or “our” life) has to be weighed equally. In this case, for examples, Hamas and the Israeli government would be required to treat any civilian deaths on the other side as equivalent to civilian deaths on their own side for the purposes of weighing evils. Deciding whether or not they are doing this is left as an exercise for the reader.

–I’m not a pacifist, but citing Jesus’ driving the money changers from the temple has to be the weakest justification for Christian non-pacifism ever devised. Does anyone not think there is a serious moral difference between running someone out of a temple (possibly by using a whip or a cord) without doing them any significant harm and, say, dropping cluster bombs on densely populated areas? Blog commenters the world over need to inter this dubious argument ASAP.

–Along with general historical ignorance, there’s not enough acknowledgment of the role the US has played, and continues to play, in this conflict. The fact that the US subsidizes the Israeli military means that we can’t simply sit back and say that it’s no business of ours to criticize how the Israelis conduct the defense of their country. Now, if we were to stop underwriting the occupation (and siege) I would be in favor of a genuinely neutral or “hands off” stance; but until that time comes, the US has both a genuine interest in the way the Israelis conduct themselves with respect to the Palestinians and a responsibility to try and make sure that they do so in ways that comport with principles of justice.

November/December reading notes

Also known as the lazy man’s book review, or capsule reflections on books I might not get around to posting on at greater length:

Ecology at the Heart of Faith by Denis Edwards and Nature Reborn: The Ecological and Cosmic Promise of Christian Theology by H. Paul Santmire

A Catholic (Edwards) and a Lutheran (Santmire) offer nicely complementary re-tellings of the Christian story that emphasize the cosmic and ecological context of God’s presence with us.

Religion and Human Fulfillment
by Keith Ward

Ward looks at controversial moral issues through the lens of various religious traditions (Christianity and sexuality, Islam and just war, Buddhism and beginning- and end-of-life issues, Judaism and religious vs. secular law); he defends a version of “transcendent personalism,” which holds that reason can discern right and wrong, but that belief in a transcendent source of being and goodness provides an extra impetus for the moral life.

God, Religion, and Reality
by Stephen R.L. Clark

A clever and idiosyncratic defense of traditional/classic theism, taking the view–unfashionable in both philosophical and theological circles–that reason can demonstrate the existence and attributes of God.

Rawls and Religion: A Defense of Political Liberalism by Daniel Dombrowski

The noted process philosopher/theologian argues for the essential compatibility of Rawlsian liberalism with robust religious commitment. He also addresses weaknesses in Rawls’ view regarding such issues as war and peace, abortion, and animal rights.

Loving Jesus by Mark Allan Powell

Powell, a Lutheran seminary professor and self-proclaimed “Jesus freak,” offers a “post-critical” piety that engages heart and head in “loving Jesus in a complicated world.” Very helpful reflections on prayer, personal devotions, stewardship, and spiritual growth that are neither overly abstract nor simplistic.

On deck:

Liberty: Rethinking an Imperiled Ideal by Glenn Tinder

The Word of Life: A Theology of John’s Gospel by Craig Koester

Just war reconsidered

The Christian Century reviews three books on just war theory and pacifism. All three agree that even if we accept just war theory, there’s a need for positive practices to nurture peace.

Barth, Yoder, and the problem of war

I assume that most readers of this blog also read Marvin’s site regularly, but in case you don’t, you should really check out his current series on Karl Barth and war:

Part 1
Part 2
Part 3
Part 4
Part 5

With more to come, including a “Yoderian” response to Barth’s position.

See here for some brief thoughts of my own on J. H. Yoder’s critique of Barth.