Lecture #12: Morality & War: Non-Combatant Immunity (Supreme Emergency)

Transcription

1 Morality & War Lecture #12: Morality & War: Non-Combatant Immunity (Supreme Emergency) The Four Central Questions about Morality & War 1. Is war subject to moral evaluation? (Nihilism vs. Moralism) 2. Is going to war always morally wrong? (Pacifism vs. Just-War Theory) 3. Under what conditions is going to war justified? (Jus ad bellum vs. Raison d état) 4. Is it permissible to kill non-combatants in war? (Jus in bello vs. Raison de guerre) a particular question within the more general topic What may one do in a justified war? or, What is meant by the criterion of just means? Just Means The Principles of Just Means Discrimination aiming only at legitimate targets (those who are doing wrong) Proportionality not doing more harm than good Military Necessity doing no more harm than necessary create restrictions on Weapons Biological Weapons Expanding bullets Targets (Principle of Discrimination) Non-combatants Ex-combatants (prisoners, the shipwrecked & injured) Cultural Property Tactics Perfidy N.B. Some weapons, targets, & tactics may be morally objectionable per se. Others might be only conventionally prohibited (to reduce the harm done in war). Pacifism Is it permissible to kill non-combatants in war? A spectrum of views Traditional Just-War Theory Revisionist Just-War Theory Utilitarianism Killing Killing Killing Killing the innocent (non-combatants) the innocent (non-combatants) which does more harm than good is always wrong. is always wrong. is usually wrong is wrong. (i.e., except in supreme emergencies). 6 Absolute Moral Prohibitions A possible argument for just-war pacifism Presumptivists may hold that some actions are intrinsically bad (or wrong). But they mean by this only that they are wrong by their very nature, but not that it is always wrong to do them. One may have to choose to do the lesser of two evil actions. Absolutists hold that actions which are intrinsically bad should never be done. They need to go on to say which actions are always wrong, and on that they may differ. So, Pacifism & Traditional Just-War Theorist differ in that the former think that killing another person is always wrong; the latter think that killing non-combatants is always wrong, but that killing combatants is not always wrong Neither the presumptivist (incl. revisionist Just-War Theorists) nor the utilitarian holds that any act is always wrong just because of the nature of the action. External circumstances can always create a situation in which any kind of action (e.g., killing the innocent) should be done. The argument Any war that kills the innocent is morally wrong All modern war kills the innocent So, all modern war is morally wrong Underlying the premises That there are innocents in war That modern war kills them

2 8 The Definition of Innocence Two Approaches to Innocence That there are innocents is incontestable Anyone who does nothing in support of the war effort is innocent. Babies do nothing in support of the war effort. So, babies are innocent. How to identify people who are also innocent General Innocence here does not mean legal innocence Innocence here does not mean moral innocence It does not contrast with guilt. Innocence is the opposite of nocence (=harmfulness, < Latin nocere, to harm ) Fr. Ford s approach by examples Jeffrey Murphy s definition of innocence The non-innocent are those who are engaged in an attempt to destroy the enemy Distinguish those in the causal chain of agency those without whose actions the war would not be possible those in the logical chain of agency those whose activities do not make any sense outside the context of the war Clarified principle only those who are in both the causal and the logical chain of agency are engaged in an attempt to destroy the enemy Application of Murphy s Definition 1 Application of Murphy s Definition 2: Not in the Causal Chain Who is in both the causal and the logical chain of agency? All combatants Arguably, munitions workers in the logical chain of agency in the causal chain of agency what they are doing makes sense only in the context of the war what they are doing is causally necessary to the destruction of the enemy Who is not? Civilian supporters of the war in the logical chain of agency not in the causal chain of agency what they are doing makes sense only in the context of the war what they are doing is not causally necessary to the destruction of the enemy Who is not? farmers Application of Murphy s Definition 3: Not in the Logical Chain Application of Murphy s Definition 4: Hard Cases Some cases seem to fit the criteria, but don t seem to be legitimate targets 12 in the causal chain of agency not in the logical chain of agency what they are doing is causally necessary to the destruction of the enemy; without food, the soldiers could not fight what they are doing makes sense apart from the context of the war; soldiers (as human beings) will have to eat what the farmer produces whether there is a war or not

3 14 The Relevance of Intentionality War does kill innocent people Sometimes it does so intentionally On Feb 13-14, 1945 the RAF & USAAF launched a 1000-plane air raid on Dresden. More than 30,000 people were killed. But war does not necessarily and not always involve such attacks. It is impossible to avoid the chance of killing civilians, which can happen in three ways by targeting error Chinese Embassy Bombing (Belgrade): On 7 May 1999, during the US war against Serbia, five precision-guided bombs intended to hit a warehouse in fact fell on the Chinese embassy. The geographical coordinates programmed into the bombs were incorrect. Three Chinese associated with the embassy were killed. by technical error The Fallujah Bridge Bombing: On 14 February 1991, the RAF dropped four laser-guided bombs on a bridge in Fallujah. The laser-guidance system in one of the bombs apparently failed to deploy and the bomb hit a nearby market, killing people. by mischance The Al-Firdos Bunker Bombing: On February 1991, the USAF dropped lb bombs on a military communications site in Baghdad which was being used by senior Iraqi officials. Unbeknownst to American targeters, several hundred civilians were using the site as a bomb shelter. Nearly 300 were killed in the attack. The moral principle Not Any action that kills the innocent is wrong But Any action that intentionally kills the innocent is wrong cf. the Principle of Double Effect intentionally killing of the innocent constitutes a bad object accidental killing of the innocent is wrong if disproportionate How does this affect the just-war pacifist argument? The original argument Any war that kills the innocent is morally wrong All modern war kills the innocent So, all modern war is morally wrong The revised argument Any war that intentionally kills the innocent is morally wrong All modern war intentionally kills the innocent So, all modern war is morally wrong Evaluation Minor premise is false But some modern wars intentionally kills the innocent; So, &c. German Targets: Rotterdam & Coventry (above) Allied Targets: Dresden & Hiroshima (below) Historical Background Although the killing of non-combatants might arise as an option to be considered in a variety of circumstances, here we will consider it in the context of the use of air power. Area bombing of cities is aimed at killing the innocent. Imperial Japanese Navy Air Service : Chongqing (1939) Luftwaffe: Warsaw (1939), Rotterdam (1940), Belgrade (1941), Coventry & other British cities (from 1940) RAF: every major city in Germany (194045), especially Hamburg (1943), & Dresden (1945) USAAF: Dresden (1945); Tokyo, Hiroshima, Nagasaki (all 1945) Precision bombing of military targets is not. USAAF: Schweinfurt ball bearing plants (1943), Ploieşti oil refineries (1943) 17 Is it permissible to kill non-combatants in war? The Utilitarian case against Non-combatant Immunity Killing non-combatants in war is permissible, since: Any act which promotes the greatest happiness is the morally correct course of action. In some cases, the area bombing of cities brings the the greatest happiness, since The Douhet-Trenchard Thesis: It can bring war to a quicker end than would fighting by conventional means (see next slide). Note that a utilitarian would not have to agree with that thesis. So, in some cases the area bombing of cities would be the morally correct course of action.

4 Monuments to Sir Arthur Harris & Bomber Command (an update to Walzer) The Douhet-Trenchard Thesis Advanced by Giulio Douhet, The Command of the Air (1921): Take the center of a large city and imagine what would happen among the civilian population during a single attack by a single bombing unit. I have no doubt that its impact on the people would be terrible. A complete breakdown of the social structure cannot but take place in a country subjected to this kind of merciless pounding from the air. The time would soon come when, to put an end to the horror and suffering, the people themselves, driven by the instinct for self-preservation, would rise up & demand an end to the war. Implemented on the Allied side by Sir Charles Portal, Chief of the Air Staff from 1940 Sir Arthur Harris, head of Bomber Command (RAF) from 1942 Gen. Curtis LeMay, commander of XXI Bomber Command (USAAF) the aim of the Combined Bomber Offensive should be unambiguously stated [as] the destruction of German cities, the killing of German workers, and the disruption of civilised life throughout Germany. Monuments were finally erected General Giulio Douhet to Harrris in 1992 to the RAF Bomber Command in 2012 Marshal of the Royal Air Force Hugh Trenchard 21 Is it permissible to kill non-combatants in war? Presumptivist & Absolutist Defenses of Non-combatant Immunity The killing of non-combatants is wrong, since Killing the innocent as part of a war is not a case where justice & beneficence work together to override non-maleficence, but is a case where beneficence alone is weighed against justice and non-maleficence. So, the argument for the permissibility of killing in warfare does not extend to the killing of the innocent, which cannot be justified. Except in a supreme emergency (says Walzer) Killing of the innocent is always harm to those against whom no harm is due. So, it is always a serious injustice. So, it is always wrong. Every act of war directed to the indiscriminate destruction of whole cities or vast areas with their inhabitants is a crime against God and man, which merits firm and unequivocal condemnation. Catechism of the Catholic Church Ford, The Morality of Obliteration Bombing Appeal of President Franklin D. Roosevelt on Aerial Bombardment of Civilian Populations, 1 September 1939 The ruthless bombing from the air of civilians in unfortified centers of population during the course of the hostilities which have raged in various quarters of the earth during the past few years, which has resulted in the maiming and in the death of thousands of defenseless men, women, and children, has sickened the hearts of every civilized man and woman, and has profoundly shocked the conscience of humanity. If resort is had to this form of inhuman barbarism during the period of the tragic conflagration with which the world is now confronted, hundreds of thousands of innocent human beings who have no responsibility for, and who are not even remotely participating in, the hostilities which have now broken out, will lose their lives. I am therefore addressing this urgent appeal to every government which may be engaged in hostilities publicly to affirm its determination that its armed forces shall in no event, and under no circumstances, undertake the bombardment from the air of civilian populations or of unfortified cities, upon the understanding that these same rules of warfare will be scrupulously observed by all of their opponents. I request an immediate reply. Walzer s Presumptivist Answer 20 His moral principles Walzer is not a consequentialist. He emphatically defends the immunity of noncombatants against utilitarian attack. He is not an absolutist, since he approves the killing of the innocent in a supreme emergency. He is a presumptivist. His central argument 1. Only soldiers lay down their rights not to be killed (by enemy soldiers). = Non-soldiers do not lay down these rights. = Non-combatants do not lay down these rights. but the right is presumptive (see next slide) 2. Killing people who have not laid down their right not to be killed is presumptively wrong. 3. So, killing non-combatants is presumptively wrong. 4. Area bombing of cities is a killing of non-combatants. 5. So, the area bombing of cities is presumptively wrong. 6. But area bombing of cities in a supreme emergency is a case where the presumptive wrongness of area bombing is overridden by the duty of beneficence. 7. So, the area bombing of cities in a supreme emergency is not morally wrong. Supreme Emergency His central concept Supreme Emergency The duty to help the victims of attack is increased (& thus more easily outweighs the prima facie duty not to harm non-combatants) when two conditions are met The danger is imminent. If the danger is not imminent, there s time to take other measures. The danger amounts to a catastrophe. Since the duty of non-maleficence (& non-combatant immunity) is serious it is not overridden merely by the duty to protect one s country from indemnities, territorial adjustments, &c. It can be overridden only if the harm being avoided is very great (& consequently the duty to help very high). 22

5 26 Putative Cases of Supreme Emergency Case Imminence Test Catastrophe Test Walzer s Verdict RAF Germany RAF (& USAAF) Dresden Feb ,000+ killed USAAF Hiroshima 6 Aug ,000 killed After the defeat of France, and with Germany allied to the USSR, & the US still neutral, Britain stood nearly alone; German victory seemed imminent. With German armies retreating before the Red Army in the East and Allied armies in the West, Germany was certain to lose the war; the only question was how quickly. A Japanese victory was not imminent in 1945; the only question was how long fighting would have to continue before Japan surrendered. Because of the nature of Nazism, a German victory would have been a catastrophe. Because of the nature of Nazism, a German victory would have been a catastrophe. Japanese militarism was not as evil as was Nazism; a Japanese victory might have done more harm than good, but it would not have been a catastrophe. A Supreme Emergency Killing the Innocent Permissible Not a Supreme Emergency Killing the Innocent not Permissible Not a Supreme Emergency Killing the Innocent not Permissible Supreme Emergency & Prima-Facie Duties The concept of supreme emergency is extensible Consider an argument about the Bush-era interrogation policies Killing the innocent is permissible in a supreme emergency. Waterboarding the guilty is less serious than killing the innocent. The situation after 11 September 2001 was a supreme emergency. President Clinton (NPR interview, 21 Sep 2006) If they really believe the time comes when the only way they can get a reliable piece of information is to beat it out of someone or put a drug in their body to talk it out of them, then they can present it to the Foreign Intelligence Court, or some other court, just under the same circumstances we do with wiretaps. Post facto. Critique of Walzer s Doctrine of Supreme Emergency The doctrine of absolute moral prohibition, applied to the killing of the innocent, represents an alternative to Walzer. Even in a supreme emergency the ordinary non-combatant is still innocent. See Kant s argument about the distinction between persons & things (See Sandel, pp & ) Arguments of St. Thomas & Vitoria Kant s argument Kant s Argument Any action that treats a person merely as a means to an end is wrong things have a price persons have dignity Killing an innocent person (even in a good cause) treats a person as a means to an end i.e., as a thing that has a price, rather than a person that has dignity So, killing an innocent person (even in a good cause) is wrong N.B.: Kant was not a pacifist, nor did he think that capital punishment was wrong He justified these actions on the basis of desert alone Question 64. Homicide 1. Is it a sin to kill dumb animals or even plants? 2. Is it lawful to kill a sinner? 3. Is this [sc. killing a sinner] lawful to a private individual, or to a public person only? 4. Is this [sc. killing a sinner] lawful to a cleric? 5. Is it lawful to kill oneself? 6. Is it lawful to kill a just man [an innocent man]? 7. Is it lawful to kill a man in self-defense? 8. Is accidental homicide a mortal sin? Q. 64, a. 2 Argument 3: Further, it is not lawful, for any good end whatever, to do that which is evil in itself, according to Augustine (Contra Mendacium, vii) and the Philosopher [Aristotle] (Ethics II.6). Now to kill a man is evil in itself, since we are bound to have charity towards all men, and we wish our friends to live and to exist, (Ethics, IX.4). Therefore it is nowise lawful to kill a man who has sinned. Reply: By sinning man departs from the order of reason, and consequently falls away from the dignity of his manhood, in so far as he is naturally free, and exists for himself, and he falls into the slavish state of the beasts, by being disposed of according as he is useful to others. Hence, although it be evil in itself to kill a man so long as he preserve his dignity, yet it may be good to kill a man who has sinned, even as it is to kill a beast. For a bad man is worse than a beast, and is more harmful, as the Philosopher states (Politics, I.1, and Ethics, VII.6).

6 31 32 Q. 64, a. 6 I answer that, An individual man may be considered in two ways: first, in himself; secondly, in relation to something else. If we consider a man in himself, it is unlawful to kill any man, since in every man though he be sinful, we ought to love the nature which God has made, and which is destroyed by slaying him. Nevertheless, as stated above (a. 2) the slaying of a sinner becomes lawful in relation to the common good, which is corrupted by sin. On the other hand the life of righteous men preserves and forwards the common good, since they are the chief part of the community. Therefore it is in no way lawful to slay the innocent. Francisco de Vitoria ( ) On the Laws of War, Q. 3, a. 1 The deliberate slaughter of the innocent is never lawful in itself. This is proved, Secondly, the basis of a just war is a wrong done, as has been shown above. But wrong is not done by an innocent person. Therefore war may not be employed against him. Thirdly, it is not lawful within a State to punish the innocent for the wrongdoing of the guilty. Therefore this is not lawful among enemies. Fourthly, were this not so, a war would be just on both sides, although there was no ignorance, a thing which, as has been shown, is impossible. And the consequence is manifest, because it is certain that innocent folk may defend themselves against any who try to kill them. 33 St. Thomas Q. 64, a. 6 Argument 3: Further, what is done in keeping with the order of justice is not a sin. But sometimes a man is forced, according to the order of justice, to slay an innocent person: for instance, when a judge, who is bound to judge according to the evidence, condemns to death a man whom he knows to be innocent but who is convicted by false witnesses; and again the executioner, who in obedience to the judge puts to death the man who has been unjustly sentenced. Reply: If the judge knows that man who has been convicted by false witnesses, is innocent he must, like Daniel, examine the witnesses with great care, so as to find a motive for acquitting the innocent: but if he cannot do this he should remit him for judgment by a higher tribunal. If even this is impossible, he does not sin if he pronounce sentence in accordance with the evidence, for it is not he that puts the innocent man to death, but they who stated him to be guilty. He that carries out the sentence of the judge who has condemned an innocent man, if the sentence contains an inexcusable error, he should not obey, else there would be an excuse for the executions of the martyrs: if however it contain no manifest injustice, he does not has no right to discuss the judgment of his superior; nor is it he who slays the innocent man, but the judge whose minister he is.