This is a cross post. It was originally published at Harry’s Place on July 10th 2014, 2:25 pm
The ethics of war, as we tend to understand it in the West, is handed down to us through the Catholic tradition. Just War Theory is broken down into two important areas (using pretentious Latin names) – jus ad bellum(legitimate reasons to go to war) and jus in bello (legitimate actions in war). For this post I am considering the actions in war: jus in bello.
There is a rule that is widely accepted and built into the Geneva Convention: non-combatants have immunity from attack. The term “non-combatants” tends to be used as opposed to “civilians” as it encompasses, as examples away from civilians, prisoners of war, army chaplains and army doctors who also cannot be deliberately targeted.
The Catholic tradition has built into it something known as the Doctrine of Double Effect (DDE). This doctrine differentiates between what is intended and what is foreseen but unintended. Consider the following: a combatant from Ruritania fires a missile into a city of Boldavia with the deliberate intent of killing Boldavian non-combatants (civilians). This is clearly prohibited by the Just War Doctrine. It breaches the idea that non-combatants are not to be deliberately targeted. Now consider the Boldavians. Fed up with missiles being fired into their cities targeting civilians they fire a bigger missile back specifically at the Ruritanians’ missile factory. When doing so the Boldavians foresee that not only will they destroy the missile factory as intended, but they will also realistically kill some civilians who happen to be in the area. These civilian deaths are foreseen but unintended. Using a standard military euphemism, they are “collateral damage.”
A way to think of the differences between the two cases is that the Ruritanians will feel they have wasted a missile if they have not killed Boldavian civilians whereas the Boldavians would be delighted if there were no civilians killed when they destroyed the Ruritanians missile factory. The deaths of the civilians is a bad consequence of the Boldavian action not an intended one. The Doctrine of Double Effect sets out the conditions that allow these foreseen but unintended bad consequences. The key points being that the bad effects are not intended, the act itself was a good one (eg destroying the missile factory) and that the foreseen bad effect is proportional. What is and what is not proportional can be in practice a hotly disputed matter.
Now consider human shields. I will break them down into two types: non-voluntary human shields and voluntary human shields. A non-voluntary human shield is simple to comprehend. It could be, for example, a child who is kidnapped and tied to the front of a tank, or patients in a hospital from which missiles are being fired. It is in breach of the ethics of war to use such human shields. Doing so should be seen as a war crime. But does this mean that the use of such human shields prohibits the targeting of a building used in such a way? The answer, in standard war ethics, can be found by applying the Doctrine of Double Effect.
Imagine the Ruritanians are firing not very accurate or powerful missiles into Boldavia from the roof of a hospital that contains one hundred patients. The Boldavians could destroy that missile capability but to do so they would also destroy the hospital foreseeing the deaths of the patients. If, as said, the Ruritanians’ missiles are not very accurate or powerful and, in practice, strike terror into Boldavians as opposed to killing them, it seems disproportionate for the Boldavians to target the Ruritanians’ hospital missile base. However, if the Ruritanians’ missiles get more and more powerful and more and more accurate, then targeting the hospital missile base might well be justified as it could be proportional. Consider, in the extreme, that the hospital missile base contained a nuclear missile that could wipe out a city of millions. The hospital patients’ immunity from being killed by a legitimate military action by the Boldavians is greater the more ineffective the Ruritanians’ missiles are.
Voluntary human shields are a different case entirely. Imagine Ruritanian civilians who answer a plea from a Ruritanian military general to sit on the roof of a building that contains military weapons. The purpose of them sitting on the roof – they understand. They are to be human shields whose mere presence is to deter the Boldavians destroying the building. I wish to argue that because they voluntarily respond to a military call they cease being non-combatants and become combatants. To explain further. Imagine Ruritania has a population of one million with 50,000 combatant members of its army. They have 1,000 missile bases. In advance of any military actions the head of the army puts out a call and asks for volunteers to sit in or near these military installations. Imagine 20,000 volunteer to do so. These 20,000 people, I would argue, become crucial to the military strategy of the Ruritanians. Because of the nature of their role I take the view that it should ethically fail: the human shields become combatants and not non-combatants and are thus they lose their immunity from attack. The proportionality requirement is relaxed. Boldavians do not need to be as concerned if voluntary human shields seated on the roof of the missile store lose their lives in an attack on the missile store if the missile store is a legitimate target.
It has been brought to my attention on Twitter by Mugwump that my views on the differing treatment of voluntary versus non voluntary human shields are not original. They are in line with Yoram Dinstein’s interpretation of international law. These views were published in his book, The Conduct of Hostilities Under the Law of International Armed Conflict, (Cambridge University Press, 2004) pp.130-131. The relevant pages can be accessed freely via Google Books, here.