Responsibility and Proportionality in State and Nonstate Wars

Abstract

People get killed in wars. Soldiers get killed, as do civilians--not only when they are deliberately targeted but also when they are trapped in a combat zone or happen to be in the immediate vicinity of a bunker or munitions factory under attack, or when they are used as cover by nonstate militants. They are bystanders who are simply standing too close. We mourn the soldiers who die in battle, but we are especially horrified by civilian deaths. That horror seems universal; we find it expressed in all the major civilizations and in almost every religious tradition. Catholic war theory, which categorically rules out any deliberate attack on noncombatants, is sufficiently well-known. Less familiar but entirely similar are the Jewish and Muslim traditions. One of the clearest Jewish statements comes from the first-century Alexandrian philosopher Philo: When [the Jewish nation] takes up arms, it distinguishes between those whose life is one of hostility and the reverse. For to breathe slaughter against all, even those who have very or nothing amiss, shows what I should call a savage and brutal soul. (1) A similar, and very early, Muslim tradition goes something like this: Umar wrote to the commanders to fight in the way of Allah and to fight only those who fight against them, and not to kill women or minors, nor to kill those who do not use a razor. (2) Today, we call civilians because they are not involved in the fighting or because they have, as Philo stated, done very little for the war effort. Even though they may be fervent supporters of the war, it is the doing that counts when we think about innocence. That word is especially applicable to the children in a particular population, who have nothing at all. Children have an obvious, palpable, insurmountable innocence. The easiest way to impress upon society the awfulness of war is to show pictures of the children killed in its course. Sometimes these pictures are used to persuade us to condemn a particular conflict, one that is currently under way--one that should be stopped, right now, because these children have been killed and many more like them remain at risk. Everyone has seen pictures like that, designed to influence the viewer. They were plentiful during the 2006 Lebanon war and more recently during the conflict in Gaza. Curiously, we are rarely shown pictures of dead or wounded children from Afghanistan, though the war against the Taliban is not entirely different from the Wars against Hezbollah and Hamas; again, civilians have been killed. Those pictures make the best possible argument for stopping the fighting; nothing can be more persuasive. Arguing Against Conflict The difficulty with an argument against conflict is that it can be made against any conflict, whether it is a war of aggression or a war of self-defense, whether it is fought to conquer another people or to rescue them from conquest, whether its purpose is to defend an empire or stop a massacre. Children die in all these wars. The only exceptions are wars that consist entirely of tank battles in the remote desert or naval battles on the high seas, but there are not many conflicts like that. And some of the wars that are not as limited and precise as those are just wars, which means that one side is fighting rightfully. From a moral standpoint, perhaps, this is a war that should be fought--because of the character of the enemy, whose success is a prospect more fearful than war itself. What if stopping the conflict now means victory for a conquering army; or the triumph of a government bent on mass murder; or the brutal repression of religious minorities; or the survival-in-strength of a militarist or terrorist force that fully intends to renew the fighting? Should we still be persuaded by the pictures? It is because of its terrible cost in innocent life that war is abhorrent. …