Hey, Just War Theory, When is Mr President Allowed to Kill Civilians?

How does Just War theory (JWT) inform us about one of the most controversial topics in war? When is it 'permissible' to kill civilians?

Perhaps one of the most horrifying aspects of any war is that innocent people die. Those who have no direct participation in the war can still be victims of war. How then is this ever excusable? Just War theory(JWT from here on) is a moral theory that is recognized as the foundations for both the laws of war and ideas of morality in war. Divided into three sections, one part of the theory deals directly with the legitimacy, or lack there of, in killing civilians. This post looks in depth at this particular criteria of JWT, discovering when, according to theory, it is 'permissible to kill civilians'. The post also looks at the problems with the answer JWT provides, and the popular response to civilian killing called the doctrine of double effect. Sprinkled throughout this post are references to the US drone strikes in Pakistan, which helps to illustrate the controversy surrounding civilian deaths in war.



Part One: The Theory

It is important to recognize what this theory is as a whole. This video is an account of the theory as described by contemporary JWT scholar Michael Walzer.  He is recognized as giving the theory, which has a history of many centuries, modern relevance. This video highlights points of the theory that this post will analyze further.

Jus in Bello and the discrimination criterion:

JWT is divided into two, sometimes three, sections: Jus ad Bellum and Jus in Bello, and Jus Post Bellum (relatively new addition, not always referred too). In relation to the civilian, we need to look at jus in bello, in other words morality on the battlefield.

In relation to killing civilians, the first criterion of jus in bello needs to be looked at. This is the principle of discrimination, or the non-combatant immunity principle. This principle entails the following:

1. Soldiers must not deliberately attack civilians. 
2. Civilians are referred to as non-combatants. Combatants pose harm, and thus can be attacked, whereas the opposite is true for non-combatants. 
3. Though some "collateral" civilian casualties are acceptable, there must be an intention to not cause harm to civilians. 

So it seems there is a straightforward answer...as long as the soldier does not intend to kill a civilian, i.e. if it is for all intended purposes an accident, then it is a permissible killing according to JWT. Unfortunately it is not this simple.

War, people, situations are complex, as are issues of morality. Scholars such as Crawford, Walzer, Kinsella, and others, look at how many variables come into play during wartime. Some of the questions that arise are:

• What makes a civilian? 
• What makes a combatant?
• What makes an accident? 
• How can one truly have a good intention? 
• How does one determine legitimate collateral damage?

Thus, following JWT is not exactly clear. This next section delves into the problems that occur, utilizing the example of warfare in Pakistan and Yemen.

Part Two: Blurred Lines

Who is a combatant?

How does a soldier determine who is the target? Easy! They wear camouflage and carry AK-47's, right?

Wrong!

Without the guns, terrorist members dress the same
as Pakistani villagers.
Google Image.

A major problem in the war on terrorism is distinguishing the soldier from the civilian, simply because of the dress code. Does this mean that killing a civilian, thinking they could be a combatant(in the case of Pakistan a terrorist), permissible because there was no clear identification? Michael Walzer claims this is not so, claiming the onus is the government to identify combatants. However, this certainly makes it a difficult task for soldiers and shows the difficult terrain of modern wars.

Intention:

JWT poses that one condition that makes it ‘permissible' to kill civilians, is that the soldier/s do not have an intention on killing civilians. Walzer discusses the problems with this, the biggest being that civilian deaths, though 'unintended' can be foreseeable, or likely, and this in turn renders good intention less valuable for civilian life. Thus Walzer argues that it is not enough to just intend correctly, but that "foreseeable evil"(the killing of civilians) must be limited as much as possible.

In Pakistan, the US use drones to kill terrorists, most of which are embedded within rural Pakistani villages. The info graphic below illustrates civilian deaths as a result of drone strikes from the US. It is a common argument that not enough is being done to limit civilian deaths, as the intention of killing civilians, or the limitation of "foreseeable evil" is questionable at most when it is clear to US military civilians are likely to be close to the terrorists.

https://www.nytexaminer.com/2012/12/nyt-undercounts-
drone-deaths-in-pakistan/

Different situations:

The final problem with nutting out what JWT says about when it is permissible to kill civilians, is when the situations aren’t so straightforward, and when one starts to think about morality a little more.

Crawford, a JWT scholar, examines the status of individuals, and the reader learns from first hand accounts what makes a soldier, for example a naked soldier in bath is not a soldier but a man having a bath, he is vulnerable and human. Does this count as a non-combatant? It did to the allied soldier watching the enemy take a bath.

Furthermore, what makes a civilian? Derek Gregory talks about how the civilian was defined in 1977 with the protocols added to the UN 1949 Geneva convention. Thus, a legal definition was constructed, however Kinsella notes its “in-distinction” between civilians and combatants. As soon as a civilian became involved in hostilities, it no longer was a civilian and could not enjoy the privileges of protection. Thus as soon as the civilian defends it’s self, it is a combatant. Crawford adds to this discussion by looking at how narrow this definition is, what about people who make military weapons? Or ship military supplies? Are they now civilians?

Another question that arises is what if the civilian is forced into a hostile environment, or the battlefield, as Thomas Gregory points out in his Afghanistan article. What does JWT say to this?

Thus, JWT, though making on the surface a clear argument, cannot answer all questions. The problems of distinction in its definitions and descriptions makes it difficult to identify in difficult or abnormal situations if the theory permits killing of civilians.

Part Three: Furthering Just War Theory with the Doctrine of Double Effect

An additional criteria when deciding if the killing of civilians in the doctrine of double effect. Bellamy claims that the doctrine of double effect is used to “judge the difference between unjustified intentional killing and justified unintended or foreseen killing". Walzer draws on three types of collateral damage that JWT may permit:

1. Accident 
2. Systematic failure 
3. Foreseen killing/the double effect.    

The last provides the most insight into JWT. In some cases, where civilian deaths are foreseen, according to the JWT these deaths are judged to be worth the military advantage. This draws into focus issues of both intention and proportionality. The intention is to lessen evil, so efforts to minimize civilian deaths must be made. Secondly, the operation must be proportionate; the deaths of the civilians must not outweigh the military objective. This is contentious but according to JWT is the answer.

Guardian article illustrates the controversy surrounding civilian
casualties from US Drone Strikes.
http://www.theguardian.com/us-news/2014/nov/24/-sp-us-drone-strikes-kill-1147

In light of the drone strikes on    Pakistan, the US claim that the civilian deaths are minimal, even less than normal warfare. And any civilian deaths can be explained that they are 'worth' the overall purpose, and are in fact collateral damage. However, there is the argument that killing civilians instill fear and hatred of the US within the Pakistani community, potentially creating more terrorists, thus undermining the justification of military cause.

In Sum:
The answer to the question at hand is that the killing of civilians is permissible if unintended and considered proportional to a military necessary operation. Intention and proportionality are the factors that determine when it is permissible. However not all military situations are straightforward, and problems with distinction in the terms of JWT mean that in some situations it is unclear whether civilian killing is permissible to JWT.

Amy McDonald. 2015.


Sources:
General Information:
http://plato.stanford.edu/entries/double-effect/
http://plato.stanford.edu/entries/war/
https://www.thebureauinvestigates.com/category/projects/drones/drones-pakistan/

Scholarly Articles/Books:
Alex Bellamy, Supreme Emergency and the Protection of Non-Combatants in War,  http://onlinelibrary.wiley.com/doi/10.1111/j.1468-2346.2004.00421.x/abstract

Derek Gregory, The Death of the Civilian? http://www.envplan.com/abstract.cgi?id=d2405ed

Helen Kinsella, The Image Before the Weapon, https://books.google.co.nz/books?id=gXOuvTbAVuoC&pg=PT301&lpg=PT301&dq=kinsella+gender+innocence+and+civilians&source=bl&ots=ZN00Jz03po&sig=YgirzDyEwg8Kv9uspew05gWqjDQ&hl=en&sa=X&ei=9vNvVY_DG4Sa8QXhpYD4Cw&ved=0CDkQ6AEwBQ#v=onepage&q=kinsella%20gender%20innocence%20and%20civilians&f=false.

Michael Walzer, Just and Unjust Wars, https://books.google.co.nz/books/about/Just_and_Unjust_Wars.html?id=AIfexY_mV7AC&hl=en.

Michael Walzer, Arguing about War, https://books.google.co.nz/books?id=sCkI0m7QffAC&dq=arguing+about+war+google+books&hl=en&sa=X&ei=dfNvVfWxNomY8QW_54GYDA&ved=0CBwQ6AEwAA.

Neta Crawford, Just War Theory and the US Counterterror War, http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=145047&fileId=S1537592703000021.

Thomas Gregory, Potential Lives, Impossible Deaths: Afghanistan, Civilian Casualties and the
Politics of Intelligibility, http://www.tandfonline.com/doi/abs/10.1080/14616742.2012.659851?journalCode=rfjp20.