What happened to these children's right to live?

September 15, 2006

The Lebanon conflict was characterised by immoral conduct on both sides, says David Rodin, who delves into just war theory.

Morality, like truth, is too often among the first casualties of war. Yet the recent war in Lebanon and Israel has been a particularly dispiriting case - one that, it can be argued, has been characterised by the use of terrorism on both sides.

How are we to judge the war in Lebanon from a moral standpoint? There has been much discussion of proportionality, but it is not always easy to tell if a military action is proportionate in practice. According to traditional just war theory, we must consider two forms of proportionality: whether the initiation of war was itself a proportionate action and whether the particular tactics employed during the war are proportionate. Proportionality concerns the balancing of harms and goods.

In the first form of proportionality, we must ask whether the expected moral costs of the war outweigh the goods it can realistically be expected to achieve. The costs of a war include the immediate death and suffering of soldiers and civilians and the long-term harms that arise from the destruction of economic and social infrastructure.

In the case of Israel, it can seem incomprehensible that the devastation wrought on Lebanon was a proportionate response to the initial Hezbollah raid and its aftermath. But the cost of war must be measured not against the harm that an enemy has already inflicted but rather the future or ongoing harms that the war is likely to avert. Here much turns on how we regard the threat from Hezbollah's rockets. If there was good reason to think, prior to the war, that those rockets posed an imminent threat to Israel, then fighting a war to destroy them might be proportionate. On the other hand, if the rockets were not an imminent threat but were intended by Hezbollah to act as a strategic deterrent, then war would likely have been a disproportionate response. This is because pre-emptive wars to destroy non-imminent threats are generally prohibited, and a war of such scale would be out of proportion to the goal of preventing future Hezbollah raids and for rescuing captured soldiers.

In the second form of proportionality, we must ask if the harm inflicted by particular military operations, especially the collateral harm inflicted on civilians, outweighs the good the operation could reasonably be expected to achieve. In making this judgment we must count the lives of enemy civilians as possessing the same value as those of fellow citizens. It is in this respect that Israeli action seems most open to criticism.

Much Israeli campaigning was aimed at destroying Hezbollah missiles (a just war aim, once Hezbollah had started targeting Israeli cities). But the collateral damage inflicted on Lebanese civilians was much too high. By most estimates Hezbollah fired about a third of its arsenal of 13,000 rockets into Israel, yet it managed to kill "only" 44 Israeli civilians.

Israeli operations, by contrast, killed well over a thousand civilians and destroyed only modest numbers of rockets. By an admittedly crude calculation, therefore, we can see that Israel was killing many more civilians in Lebanon than it could possibly hope to save in Israel - perhaps ten or 20 times as many.

But, responds Israel, Hezbollah wrongly used Lebanese civilians as human shields; therefore responsibility for these civilian deaths should be attributed to Hezbollah, not the Israeli Defence Force. If it is true that Hezbollah was using civilians as human shields (the claim has been contested by Human Rights Watch), then this was indeed a grave violation of the laws of war. But the law is very clear that if one side breaks the law by using civilians as human shields, the other is not exempt from taking due care to avoid disproportionate civilian casualties.

A good test is to ask what the Israeli strategy would have been if Hezbollah had been using Israeli civilians as human shields. It is inconceivable that the Israeli Defence Force would have then unleashed such a devastating bombardment on the logic that responsibility for the ensuing deaths belongs to Hezbollah.

This assessment of proportionality draws from well-established tenets of just war theory. Yet there is a recent tendency to downplay the moral significance of proportionality, as if disproportionate action were merely a blemish on an otherwise just war. Throughout the Lebanon war, Israel stressed that it was engaged in a war against ruthless terrorists. Israel's right of self-defence is seen as primary, and the collateral death of Lebanese civilians is cast as a regrettable result of necessary military action. Above all, Israel claims that we cannot draw a "moral equivalence"

between the deaths of Israeli civilians and the deaths of Lebanese civilians. This is because the former are presumed to result from the intentional targeting of civilians, in other words terrorism, while the latter are claimed to be the side-effect of attacks on legitimate military targets.

There is a growing body of just war theory, however, that regards this view as fundamentally mistaken. In many cases there is a "moral equivalence"

between acts of terrorism and disproportionate collateral damage. Indeed, some forms of collateral damage may be, quite literally, acts of terrorism.

Why does terrorism have the status of an almost uniquely heinous moral crime? The answer is that it consists of the wrongful killing of civilians, and the right to be free from attack and violence is among the most basic and sacred of all human rights.

But the wrongful killing of civilians is precisely what disproportionate military action is. Disproportionate collateral damage in war stands to terrorism, as reckless or negligent manslaughter stands to murder. In collateral damage there is no direct intention to kill civilians, but the damage may be criminally reckless or negligent all the same. And the reckless or negligent killing of a large number of innocent people may be a greater crime than the intentional murder of a few. In a similar way, the disproportionate collateral killing of civilians in war may be a more heinous crime - and morally worse - than an act of intentional terrorism. I believe that we should include such grossly disproportionate action under the moral definition of terrorism because it shares so many features with it. It is simply a species of terrorism that does not require direct intention.

Yet one might object that this does not give proper consideration to the special duties that states owe to their citizens. Every state has the duty to protect its citizens, and while a state may not intentionally kill other innocent people to protect its own citizens, it may impose significant risks on the innocent for the greater good. For example, the state licenses emergency services to exceed the speed limit and pass red lights and permits some police officers to carry guns, even though the foreseeable consequence is that certain innocent people will be killed in accidents or mistakenly shot as criminals.

But the comparison with these cases is instructive. Why is it permissible for the state to impose severe risks on innocent people through such policies and actions? The answer is twofold. First, those who bear the risks also reap the benefits. We all share the risk of being killed by a speeding ambulance or police car, but in return we all share the benefits of efficient emergency services. Second, in a democracy at least, citizens shape the risk-generating policies of their state, and in this way give their implicit consent to the risks entailed.

Contrast these cases with the collateral harm inflicted on enemy civilians in war. Those Lebanese killed as a side-effect of Israeli action had not given their democratic consent to the policy of bombardment that destroyed their homes, nor were they the intended beneficiaries of Israeli foreign policy or military strategy.

Just as innocent civilians have the right not to be intentionally killed, they also have the right not to have severe risks imposed on them by policies and actions to which they have not consented, and from which they gain no benefit. In this way, we can see that the traditional rules of proportionality are, in fact, much too lenient. Those rules imply that killing civilians is permissible so long as their deaths are an unintended side-effect of military action, and the harm to civilians is not greater than the harm the military action seeks to avert.

Put simply, if humans have rights, then the massive harm inflicted on civilians in recent campaigns - not simply by Israel but also by the UK and America in Iraq and Afghanistan - is profoundly wrong.

None of this should be seen as an apology for Hezbollah and its co-jihadists. Armed incursion inside the territory of another state, the indiscriminate targeting of civilians with rockets and suicide bombs and the use of civilians as human shields are all sickening violations of the most basic moral norms. They deserve the strongest forms of condemnation and, in an ideal world, prosecution and punishment for murder and war crimes. But it is a fundamental mistake to think that those who fight terrorists cannot themselves perform acts just as wrong as terrorism.

Israel and the Western powers must do much more to ensure that their war against terrorism does not itself become a terrorist war.

David Rodin is a research fellow in philosophy at Oxford University.

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