The importance of protecting non-combatants^

By Henrik Syse

Introduction

Let me first thank you for the kind invitation to speak to this eminent audience here in Trondheim. My special thanks to Professor Asa Kasher for making the trip here to share his challenging and important thoughts.

Closeness to the debate at hand counts for a lot in ethics – indeed, the academic debate over the last 20 to 30 years within ethics has reminded us that distance, neutrality and disinterestedness are not always recipes for success.¹ The toughest problems are tough exactly because they involve such danger, or such strong emotions, or such high stakes, that the disinterested party – while hopefully able to contribute ideas and perspectives – cannot be counted on to grasp the severity of the problem. The trained philosopher and seasoned academic who also sees up-front the horrors of the situation at hand, and feels he has a stake in them, must therefore be listened to. This does not mean that even-handedness and fairness should be foregone, but it means that we cannot treat life-and-death matters as if they were mathematical or logical problems solvable in the peaceful context of a Philosophy Department office, or for that matter an Air Force Academy auditorium. We need more than observers; we also need thoughtful partakers, such as Asa Kasher.

With me, I am afraid that you are once again stuck with an observer. My task is to look at things from the outside, as a theoretician. I cannot claim to be disinterested, however. While I take no part, nor have any personal stake, in the Middle East conflict, I have made the ethics of war and peace one of my central fields of research, and I feel strongly that the current conflict between Israel and the Palestinians raises so many hard, sometimes even heart-breaking questions within my field, that it is difficult to analyze it coolly and calmly. I will do my best, but cannot promise that I will succeed. And as I have already indicated, maybe it is not always necessary to succeed.

The problem of exceptions

Let me start on a more pedestrian note than the hard questions of war and peace: Exceptions to rules are, morally speaking, dangerous. We all know that. Once you start opening up for exceptions, you often have no way of stopping since the signal has already been sent that the original rule is not absolute. That is why bringing up children is so hard. As an adult you know, for instance, that lying is sometimes (albeit rarely) permissible, possibly even required in a few cases, but you really do not want to institutionalize such an exception in front of your children, because you also know that reverence for truth and general obedience to the do-not-lie rule are such important constituents of a good social order and indeed of a good life. Most of the time, “just this once” does not work as a good pedagogical or moral tool. An excuse for doing it once more has, after all, already been implied by the first time’s exception. My children have picked up on this long ago – whenever they ask me for something they know they should not have, they will always preface it by saying “oh, just this once” or “just one more time” or “please, please, please for the very last time”. (What they actually mean is, of course, “a million more times, please, dad.”) They know that if the floodgates – if not of hell, at least of fun and play – have been opened, it is a real challenge to close them again.

Back to the world of life-and-death dilemmas: Using violence against civilians in wartime must always, from the point of view of military ethics, come under the general category of “exceptions”. In short, civilians – or more broadly non-combatants, since prisoners of war should also be subsumed under this heading – are as a rule not to be made victims of war.

There are several weighty reasons why non-combatants should not be made direct and intended targets of attack; and why they, even when they are the unintended victims of armed attack, should be shielded as far as possible. Let us list those reasons:

• Non-combatants are not capable of defending themselves against attack

• Non-combatants pose no immediate lethal threat to the attacker

• Attacking them raises the general level of violence and hatred in the conflict, making the chances of violence being used against non-combatants on one’s own side much higher

• Using violence against non-combatants brutalizes your own fighting forces and results in a military morale and an atmosphere that are conducive neither to sound military discipline nor to a successful integration into civil society of one’s soldiers after the cessation of conflict

This list can also be explained by reference to the three most famous traditions of ethics within Western moral philosophy:

• The deontological (duty-ethical) argument: It is wrong per se to use violence against those who cannot defend themselves, and who pose no immediate threat

• The consequentialist argument: Using violence against non-combatants raises the general level of violence and hatred to such an extent that your own troops and civilians are put in more danger, not less

• The virtue-ethical argument: By using violence against non-combatants we shape a kind of soldier that we do not wish to identify ourselves with – “this is simply the kind of thing we will not do, or the kind of persons we want to be”

In the special case of prisoners of war – made topical by the recent heated exchanges over Abu Ghraib and Guantanamo – it is important to remember that prisoners of war are not being held prisoner because they have done anything wrong; they are simply combatants who are made non-combatants. We keep them locked up so that they cannot return to their combatant status for as long as the fighting lasts. If they are suspected also of committing war crimes or crimes of terrorism – i.e., of being “irregular fighters” – and they cannot reasonably be tried through their own criminal system once the war is over or within the POW camp, one may of course take out charges against them and, as soon as possible, bring them before a court. The recent attempts – since 9/11 – at creating a special category of “illegal combatants” who can be kept locked up and isolated just as POWs, but without the protection normally accorded POWs, and with no real chance of getting a trial or a verdict or even a court decision as to whether they are legally speaking POWs or not, fall in a no-man’s land which we should leave uninhabited. This is, alas, where the United States are today, and it is being justified, of course, because of the extraordinary nature of our current challenges.

Which brings us back to my point about exceptions: The rules of war were made exactly for the extreme circumstances of war. The ius in bello rules worked out by the chivalric writers or by Vitoria or Grotius or Dunant or the 20^th-century authors of our current four Geneva Conventions, were not rules designed to fit the everyday, relatively undramatic world of peace and diplomacy, only to be set aside when things really got tough. Neither were they meant to be abandoned in cases where the other side started using tactics outside the borders of military ethics and international law. They were made as general, normally exceptionless rules protecting soldiers and civilians on both sides, even in wars of extreme drama and brutality. As I will return to towards the end, we need to question why they should not be applicable – or why they need to be changed – now.

Apropos this problem, the Norwegian international-law expert Arne Willy Dahl has reminded us² that we do not expect the police to abandon their codes of conduct because they are faced with hard-nosed criminals who care little for those codes. That is a common-sense parallel we should not forget. The fight against crime should not force us into ourselves becoming criminals!

Civilians and “double effect”

Asa Kasher and others have argued that the fight against Palestinian terrorists does call for new rules because of the exceptional character of the conflict Israel is engaged in. It has been argued that one may, under such exceptional circumstances, open up the possibility of attacking and destroying purely civilian targets, when there are suspected terrorists lodged within them, and when one’s own population is being threatened by those terrorists. In this case, it is not the civilians (say, in an apartment building) who are being intentionally attacked, according to the argument; they are merely bystanders who happen to be in the way. Even if there are many of them, their deaths are legitimized by the fact that one or more of one’s own citizens may be saved in this way. This argument uses what is known in just-war terminology as double-effect reasoning, the idea being that the intended effect is surely not to kill the civilians – their deaths are merely the foreseen, but unintended side-effect of one’s actions. As long as the side-effect is unavoidable and can be allowed according to a proportionality calculus, the action is not to be counted as immoral or as a war crime.

I take it for granted, however, that one is doing something that normally could not be done, even according to double-effect reasoning (otherwise the plea for special and amended rules would not have been made) – something that is made possible, ethically speaking, by the exigencies of the situation. It is (or so it seems to me) the proportionality calculus that is being changed. If 50 or 100 Palestinian civilians lose their lives so that one suicide bomber can be killed, and the attack against these civilians is so direct that there is no reasonable way they can escape from it, it is doubtful that this would be allowable under normal military circumstances, even if the civilians are not the intentional target of the attack. Asa Kasher and Amos Yadlin have argued, in the draft of an article to be published in no. 1 of the 2005 volume of Journal of Military Ethics, that it is allowable to do this in a war against terrorists, because we cannot let terrorists get away with hiding among civilians and thereby get de facto immunity. Even if the ethical criterion of proportionality seems to be violated in each particular circumstance of this kind, the general fight against the tactic of terrorism requires it and renders it proportional, since we are fighting an especially lethal tactic which cannot be allowed to go unpunished or unchecked, and which endangers the lives of our own civilians.

Now, if such an attack could end (or at least seriously hinder) the scourge of terrorism, or if there were no other ways whatsoever of increasing one’s security against terrorist attacks, one could possibly accept such an argument – it would be what Michael Walzer has called a “supreme emergency”.³ But as it stands now, I am in much doubt. Morally speaking, one is indeed crossing an important ethical boundary – even if one accepts (as I do) double-effect reasoning – by discounting the value of Palestinian civilian lives so dramatically vis-à-vis the lives of one’s own civilians. Prudentially speaking, one is eliciting a set of reactions among the civilian population on the Palestinian side so angry, so hateful, and so extreme, that one prepares the ground for more, not less terrorism.

Generally, I believe it is true that even to save one’s own citizens, there are things one should not do. I take it for granted that the Israeli leadership believes the same, since it would hardly be willing to negotiate with hostage takers to free a civilian Israeli kidnapped in, say, Iraq, even if that would be guaranteed to save the life of that one civilian. One cannot, after all, make compromises with hard-nosed hostage takers. I believe one should be equally careful with making compromises vis-à-vis one’s most important ethical standards. Putting strict limits of proportionality on one’s use of double-effect reasoning in attacks that seriously harm or kill civilians, should certainly be counted among those important ethical standards!

Conclusion

I will not make specific pronouncements on the extremely hard cases facing the Israel Defense Forces or Israeli society at large. I admit that the nervousness and desperation experienced in a country under constant danger from suicide attacks inevitably lead to a feeling that extreme measures are needed. However, surveillance, various forms of imprisonment, international police and intelligence work, and all the other policies we have come to know well as part of a fight against terrorism are harsh in themselves; yet they are basically different from the tactic of using armed force in civilian areas on such a scale as the Israelis have done over the last years. One should remember that the basic reasons mentioned above for protecting non-combatants are every bit as forceful in a “war against terrorism” as in any other violent conflict. All the serious drawbacks associated with large-scale destruction and death among non-combatants are as real in the current situation as they have always been.

This is not in any way meant to legitimize Palestinian suicide attacks, nor to claim that the Israelis are being more brutal than their opponents. But it is a call to the Israeli political and military leadership to act according to those rules of armed conflict that we expect all civilized democracies to respect. The suspicion that these rules are not being respected, and that one is creating a new sphere of “exceptions to the rules” – to last as long as one is under attack from terrorists – is extremely damaging to all sides to the conflict, and not least to Israel itself.

This leads me to my final point: I claim that we have gone too far in the post-9/11 world in viewing it as a world where exceptions come into play because the rules have been challenged so dramatically. I admit that we are fighting an enemy that respects no rules, and our own rules have to change to meet that fact. In terms of smartness and cunning and gathering of intelligence and infiltration of the enemy, we are clearly faced with unique challenges and have to use military force in a different way from what we are used to. In terms of everyday measures to protect civilians, we also have to devise new rules – some of them cumbersome and time-consuming, certainly, but most of them relevant and necessary. But is it time we change the ethics? Is it true that the threat we face is of such a kind that breaking the most basic rules of armed combat – everything from the ad bellum question of the war in Iraq, to the in bello questions of counter-insurgency and counter-terrorist warfare in Israel and the treatment of prisoners in Guantanamo, Afghanistan, or Abu Ghraib – is the right thing to do, and will serve us in the long run?

My fear is the following: In order to show decisiveness and swiftness of action, and thus impress our own citizens as well as our enemies, we too easily opt for solutions that fail along all three lines of the ethical spectrum; deontological, consequentialist, and virtue-ethical. Since we know that terrorists do not respect rules nor accept compromise, we seem to believe that circumscribed and scrupulous use of military power against them will be self-defeating. But thereby we lose the “moral high ground”, at our own peril. The catastrophe for the United States and Israel today is indeed that the moral advantage has been all but lost, with no real gain in security. While anti-Americanism, or for that matter anti-Semitism, are serious and dangerous challenges that we must confront and address, the dramatic turn in world opinion over the last three years cannot be explained in those terms alone. They are a reaction to what has been seen as serious rule-breaking on the part of the very nations that claimed to hold the moral high ground – the nations that most of us would be (and remain) prepared to support for that very reason.

Acting ethically is not the same as being weak. Being utterly scrupulous about hitting civilian targets is not the same as fighting inefficiently. In some cases it will admittedly mean that one will be less able to take out the targets one most wishes to hit – including the hide-outs of suspected terrorists or suicide bombers. But that is not the same as letting our moral scruples be turned into the other side’s advantage. We are simply not allowing ourselves onto the dangerous slippery slope of exceptions, and we are telling the world clearly why, in terms understandable to all.

There may be times when we need to say “just this once”. But then we have to be sure that the normal rules do not apply, and that breaking them will lead to increased security, especially for non-combatants, and will heighten the chances of peaceful co-existence and an end to violence. I doubt whether discounting the lives of civilians in the fight against terror is a good way of getting to those worthy goals.

Henrik Syse (f. 1966) er forsker tilknyttet Institutt for fredsforskning (PRIO) og Etikkprogrammet ved Universitetet i Oslo. Han har skrevet en rekke artikler om krigens etikk, samt boken Rettferdig krig? Om militærmakt, etikk og idealer (Oslo: Aschehoug, 2003). E-mail: henrik@prio.no.