November 27, 2012

IRD Blog: Professor Daniel Bell and Proportionality

Statue with balance scales

(Photo credit: Susan Uhlig)

By Keith Pavlischek

In my last post I mentioned Daniel Bell’s book Just-War Christian as Christian Discipleship: Recentering the Tradition in the Church Rather than the State. I called it “idiosyncratic.” Bell divides those who embrace Just War tradition and theory between the good guys, who conceive of Just War as Christian discipleship and the bad guys who conceive of Just War as a public policy checklist. In this post I want to describe how that novel distinction plays out in an understanding of the jus in bello principle of proportionality that actually runs counter to the consensus of just war tradition. In my next post I will discuss how the position adopted by Bell amounts to little more than a functional modern war pacifism.

Bell discusses the jus in bello in the final chapter of his book titled, “How Fight?: Discrimination and Proportionality,” but the place I want to start is much earlier with  his chapter on “Can War be Just: A Brief History of Just War,” particularly his description of what Francisco de Vitoria (1458-1546) had to say. Bell views Vitoria favorably, noting that “he managed to pull together the various strands of the [just war] tradition into a coherent whole….Vitoria (who was himself a student of Aquinas’ thought…and the school of theologians around him are known for the way they discussed just war not only by drawing on Scripture and tradition but also by appealing to the customary laws of people or nations.”

One of Vitoria’s major contributions that merit attention, according to Bell concerns his treatment of the justice of waging war (jus in bello), which he did in a “substantial and systematic manner.” Vitoria begins with an affirmation of the immunity of the innocent from attack, but “what is novel about Vitoria’s treatment is that he picks up on Aquinas’s observation that an action can have both intended and unintended effects (“double effect”) and uses it to qualify the immunity of combatants.”

Thus he argues that although one can never intentionally kill the innocent in war, one may nevertheless engage in actions that will in all likelihood [emphasis mine] kill the innocent so long as those deaths are accidental in the sense of not being intended. He gives the example of besieging a city and attacking it with artillery and fire. Such actions, he asserts, will cause the death of innocents, but they are permissible so long as they are necessary to attain victory (recall the notion of “proportionality” mentioned above) and the death of the innocents is neither intended, nor or desired.

What is remarkable about this generally favorable description of Vitoria in Chapter 2 is his complete repudiation of Vitoria in his final chapter. He does not explicitly repudiate Vitoria as such, but he adopts an understanding of discrimination and proportionality that effectively rejects Vitoria’s argument.  In fact, Bell claims that those Christians who think the way Vitoria does about the jus in bello are among the bad guys who embrace just war as a public policy checklist rather than a form of Christian discipleship. As I said, Bell has advanced a highly idiosyncratic understanding of the just war tradition.

Vitoria’s example of the permissibility of foreseen and likely civilian casualties in the conduct of siege warfare is directly analogous to contemporary situations in which combatants surround themselves with civilians in order to avoid attack, the tactics of Hamas in Gaza being only the most recent well-publicized example. For a helpful discussion of ethical obligations of combatants in siege warfare, see Michael Walzer’s Just and Unjust Wars (160-170). Walzer building on a tradition established by Maimonides, Vitoria and Grotius, says, “When [the attacking siege commander] opens his lines to civilian refugees, he is reducing the immediate coerciveness of his own activity, and having done that he probably has a right to carry on that activity….The offer of free exit clears him of responsibility for civilian deaths.”

But, back to the broader and more fundamental point, what Vitoria and the just war tradition declares permissible, Bell declares impermissible. The jus in bello principle of “discrimination as a positive responsibility,” he says in direct contradiction of Vitoria, “does not permit just warriors to kill noncombatants unintentionally when such unintentional killing is foreseen and/or likely to occur.”  Bell never tries to square this circle, he simply declares that those who agree with Vitoria are aligned with the bad guys who reject just war as “Christian discipleship” and embrace it as a “public policy checklist.”

In my next post, I will discuss what how Bell’s own so-called “Christian discipleship” understanding of the jus in bello is so radical that it amounts to a functional pacifism.