When, in the mid-1960s Methodist theologian and Princeton Professor Paul Ramsey penned “How Shall Counter-Insurgency War be Conducted Justly,” he was concerned with asking how a counter-insurgent military force could abide by the principle of discrimination (or distinction) which is not shared by an insurgent force. Ramsey was particularly concerned with asking whether a counter-insurgency was even possible when insurgents used the civilian population as a hostage shield.
The basic problem was that insurgents, by deliberately integrating themselves with the civilian population (“as fish in the sea,” as Mao Tse Tung put it) would force counter-insurgent forces to inflict high levels of civilian casualties, even though such casualties were unintended. And then, to boot, the counter-insurgents would employ those civilian casualties as a propaganda tool. If this problem sounds similar, at least with regard to the relevant moral and ethical issues at stake, to the conflict between the Israelis and Hamas in Gaza, (and other contemporary counter-terrorist issues) that’s because it is.
Ramsey believed it was indeed possible for counter-insurgents to fight justly. Ramsey insisted, of course, that if insurgent forces employed selective terror, that did not give license for counter-insurgent forces to employ a strategy of terror as well. It was never permissible to attack civilians directly and intentionally. It was, for example, never just to attack the wives and children of insurgents/terrorists, as a means to get at the insurgents/terrorists. But at the same time, it was important to ask questions as to who was responsible for civilian deaths that were unintended, though foreseen, and that resulted from the hostage shield tactics employed by insurgents.
On this question, Ramsey was unmistakably clear. It was the insurgents who were responsible for deliberately expanding the area liable to attack from counter-insurgent military forces and it was the insurgents who were responsible for civilian deaths resulting from military attacks on insurgent forces, if those attacks were discriminate and if the noncombatant deaths were proportionate to the military objective. Again, this did not give insurgent forces license to attack the civilian population directly and intentionally, it did not mean that counter-insurgent forces could resort to terrorism, but it did shift the major responsibility for those unintended civilian deaths to those forces employing hostage shield tactics.
The principle that Ramsey was working with was the principle of double effect. As we saw in our last post, in his book Just War as Christian Discipleship: Recentering the Tradition in the Church rather than the State, Professor Daniel Bell describes the principle of double effect as articulated by Francisco de Vitoria (1485-1546), one of the most important theologians who discussed just war by drawing on upon Scripture and tradition. Professor Bell describes the principle of double effect as articulated by Vitoria as follows:
Thus he [Vitoria] 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.
Now, compare this description of Vitoria with the following comment by Professor Bell in the final chapter of his book, dealing specifically with the jus in bello, or the right conduct of war.
Accordingly, the criteria of discrimination is not satisfied simply by making sure all noncombatant deaths are unintentional. Rather discrimination as a positive responsibility does not permit just warriors to kill noncombatants unintentionally when such unintentional killing is foreseen and/or likely to occur.
Evidently, Bell thinks Vitoria was wrong to say that “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.” Bell does not tell us whether Vitoria gets this wrong because he is committed to a “public policy checklist” understanding of the just war tradition rather than a “Christian discipleship” understanding.
While we should readily agree with Professor Bell that discrimination is a “positive responsibility” his insistence that all unintentional killing of noncombatants that is foreseen and/or likely to occur makes a mess of both the principle of double effect, the just war tradition, the laws of war that have drawn upon the just war tradition, not to mention the careful reflections of Christian just war theorists such as Paul Ramsey. But more importantly, Bell’s take on all this, which he labels the good “Just War as Christian Discipleship,” as opposed to the bad “Just War as Public Policy Checklist” view, amounts to what is in effect a functional pacifism that would make it practically impossible to fight either insurgents or terrorists who are shrewd enough to use civilians as hostage shields.
Now, Professor Bell anticipates this objection. What, he asks, is the proper response when the enemy is abusing noncombatants by employing them as shields? His answer is given in a section of his book tellingly titled “Renouncing Responsibility”:
Put bluntly when weighing an attack against an enemy who is using noncombatants as shields the proper response is not to assign blame and then do what has to be done. Rather, the proper response is to be more discriminate.
Instead of using air power, he says, use ground forces. Instead of using tanks and artillery, use infantry. Instead of using an M-16 or hand grenade, use a sniper.
Fair enough. Generally speaking, if a just warrior has available a more discriminating weapon, he should use it when noncombatants are in the area. And, apart from the thorny question as to how much increased risk an attacker must accept for his own forces when choosing a more discriminate means of attack, the use of more discriminating weapons and tactics to mitigate the likely harm to noncombatants is a point on which everyone can generally agree.
But that’s not exactly the issue at stake. Mitigating the extent of foreseeable and likely harm to noncombatants with more discriminating weapons and tactics is not the same as a prohibition on all lawful attacks on combatants that would likely and foreseeable cause unintended harm to noncombatants. That Bell indeed would prohibit such attacks, regardless of military necessity, is confirmed when he admits that “in some situations, it may be that no available weapon or tactic can be used without foreseen and almost certain noncombatant deaths, and so the destruction of that particular military target must have to be forgone, at least for the time being.”
It is impossible to see how Professor Bell could answer Paul Ramsey’s question, “How Shall Counter-Insurgency War be Conducted Justly,” with anything other than a simple and straightforward, “it can’t.” Bell acknowledges that this “understanding of discrimination will undoubtedly strike many as too rigorous.” Indeed!
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