Innocence and complex threats: Upholding the war ethic and the condemnation of terrorism

Ethics

Volumn 114, Issue 4, 2004, Pages 734-751

  Zohar, Noam J ^a  

^a NONE

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EID: 8644262265     PISSN: 00141704     EISSN: None     Source Type: Journal    
DOI: 10.1086/383444     Document Type: Conference Paper

References (38)

1. My use of this term for the traditional 'jus in bello', rather than the term 'war convention' employed by Michael Walzer throughout his just and Unjust Wars (New York: Basic, 1977), is motivated by the nature of my project here; see Sec. II below.
2. More precisely, the moral outrage presumes some form of selective immunity that protects noncombatants, and perhaps (on a revised version of the war ethic) some soldiers, but excludes most soldiers (cf. n. 23 below). Sometimes so-called terrorists are denounced even when they attack soldiers, but this is clearly misleading. If the attackers wear no uniform and hide by blending into civilian population, they may be guilty of an illicit guerrilla strategy. This may be morally wrong on a related count-that they effectively drive the soldiers to harm civilians in attempting to fight the guerrillas (cf. Walzer, pp. 176-79); still, their attacks on the soldiers are not "terrorism."
3. These extremely brief comments are not meant to dismiss rule utilitarianism, whose proponents have offered sophisticated defenses of their approach in general, which can no doubt be applied to the war convention in particular. I simply mean to indicate that even utilitarians should have some interest in the discussion that follows.
4. It is worth noting that Walzer, who consistently uses the term 'war convention', explicitly seeks to ground it "in a theory of rights" (pp. 137 ff.). In this he is, of course, representative of the entire just war tradition.
5. If they know-or ought to know-that they are fighting in an unjust war, then they have a prima facie duty not to take part in it. Where this obtains, I tend to agree with those (such as Jeff McMahan, "Innocence, Self-Defense and Killing in War," Journal of Political Philosophy 2 [1994]: 193-221; and David Mapel, "Coerced Moral Agents? Individual Responsibility for Military Service," Journal of Political Philosophy 6 [1998]: 171-89) who would hold individual soldiers morally culpable-although perhaps not legally liable-for killing enemy soldiers. But war often has a mixed character on both sides: each is somewhat just and somewhat unjust. My discussion is addressed to that sort of opaque condition.
6. If they know-or ought to know-that they are fighting in an unjust war, then they have a prima facie duty not to take part in it. Where this obtains, I tend to agree with those (such as Jeff McMahan, "Innocence, Self-Defense and Killing in War," Journal of Political Philosophy 2 [1994]: 193-221; and David Mapel, "Coerced Moral Agents? Individual Responsibility for Military Service," Journal of Political Philosophy 6 [1998]: 171-89) who would hold individual soldiers morally culpable-although perhaps not legally liable-for killing enemy soldiers. But war often has a mixed character on both sides: each is somewhat just and somewhat unjust. My discussion is addressed to that sort of opaque condition.
7. Whether this is a problem depends, in part, on the view one takes with regard to self-defense against a "Justified Attacker"; see the discussion in McMahan, "Innocence, Self-Defense and Killing in War." Another difference is that soldiers, being subject to wartime military discipline, are arguably acting under duress. This, however, seems to furnish only an excuse and not ajustification; as argued by R. K. Fullinwider ("War and Innocence," Philosophy & Public Affairs 5 [1975]: 90-97), killing in self-defense seems plainly permissible in an analogous nonmilitary setting.
8. Such a collectivist argument can also be offered, of course, with respect to soldiers who are actually attacking us yet are not blameworthy for doing so.
9. Noam Zohar, "Collective War and Individualistic Ethics: Against the Conscription of 'Self-Defense,'" Political Theory 21 (1993): 606-22.
10. McMahan, "Innocence, Self-Defense and Killing in War," pp. 211-13.
11. The question of personal responsibility is very important in itself and in other contexts is certainly the more important one, but it is not the right question with respect to the war ethic.
12. See, e.g., Sanford Levinson, "Responsibility for Crimes of War," in War and Moral Responsibility, ed. Marshall Cohen, Thomas Nagel, and Thomas Scanlon (Princeton, NJ.: Princeton University Press, 1974), pp. 104-33, p. 105; Larry May, The Morality of Groups (Notre Dame, Ind.: University of Notre Dame Press, 1987); David Copp, "Responsibility for Collective Inaction," Journal of Social Philosophy 22 (1991): 71-80.
13. See, e.g., Sanford Levinson, "Responsibility for Crimes of War," in War and Moral Responsibility, ed. Marshall Cohen, Thomas Nagel, and Thomas Scanlon (Princeton, NJ.: Princeton University Press, 1974), pp. 104-33, p. 105; Larry May, The Morality of Groups (Notre Dame, Ind.: University of Notre Dame Press, 1987); David Copp, "Responsibility for Collective Inaction," Journal of Social Philosophy 22 (1991): 71-80.
14. See, e.g., Sanford Levinson, "Responsibility for Crimes of War," in War and Moral Responsibility, ed. Marshall Cohen, Thomas Nagel, and Thomas Scanlon (Princeton, NJ.: Princeton University Press, 1974), pp. 104-33, p. 105; Larry May, The Morality of Groups (Notre Dame, Ind.: University of Notre Dame Press, 1987); David Copp, "Responsibility for Collective Inaction," Journal of Social Philosophy 22 (1991): 71-80.
15. Judith Jarvis Thomson, "Self Defense," Philosophy & Public Affairs 20 (1991): 283-310.
16. Robert Nozick (Anarchy, State and Utopia [New York: Basic, 1974], p. 34), who seems in agreement with Thomson, speaks of disintegrating the falling body with a ray gun. This seems a clearer case of killing an "innocent threat," since deflecting is arguably more like averting the collision; it seems plain enough that, if possible, one may simply step aside.
17. It is worth emphasizing that we face the same problem even if we adopt the more moderate position, as argued by Nancy Ann Davis ("Abortion and Self-Defense," Philosophy & Public Affairs 14 [1984]: 175-207), that the endangered person does not have a right to kill an "innocent attacker" or "innocent threat" but rather only a permission. The main implication of this distinction relates to third parties, who may (or even must) intervene only to prevent the violation of a right. In any event, the endangered person-or, in the case of warfare, people-have an agent-relative permission to eliminate "innocent threats."
18. Of course, a similar challenge faces those who do not allow killing an "innocent threat," but who deny that soldiers are innocent; one way to meet it would be to greatly restrict the scope of the permission to kill enemy soldiers.
19. This is along the lines argued by Michael Otsuka ("Killing the Innocent in Self-Defense," Philosophy & Public Affairs 23 [1994]: 74-94, pp. 90-91).
20. Thomson, "Self Defense," p. 290.
21. A related issue is that of the "innocent shield." This breaks down into a number of different scenarios, in some of which the "shield" is stationary (e.g., a villain who is shooting at me is cynically hiding behind an innocent bystander). I am not sure what position each of the supporters of ESD takes on this.
22. Perhaps you think that here, too, the threat lies not in the restriction of motion in itself, but in my metabolic processes that are slowly consuming my energy reserves, or (alternatively) in the contingent fact that my current source of food is at a certain distance from me. Imagine instead, then, some condition that makes it necessary for me to walk around most of the day (perhaps a particular medical condition, or just the fact that moving around is the only way to keep warm); the obstructor so constrains my space that I am unable to move as I need.
23. Details may be added as deemed necessary to explain why it is my body that stands to be crushed, or impaled, etc.
24. If you do think motion is a determining factor, imagine that the obstructor is in fact not stationary but is rather moving toward the point at which he will fatally obstruct me (see my discussion of this in Zohar, pp. 611-13).
25. See my discussion and, more comprehensively, that of J. L. Mackie ("Responsibility and Language," Australasian Journal of Philosophy 33 [1955]: 143-59).
26. This will likely not be true of literally all the soldiers. Like any organization an army is somewhat inefficient: some of its personnel in fact contribute nothing at all to its function. Thus it seems that even the most extended version of individual self-defense cannot account fully for the blanket permission of killing soldiers. This implies either that the war ethic should be amended or that ESD be supplemented (e.g., by pointing to the impracticality of identifying the minority of soldiers who are ineffective). I myself anyway prefer the collectivist option; my efforts here are directed at constructing the best account of the individualistic option, which in any event must depend on ESD.
27. It seems that the notion of "contribution" must also be extended in this context to cover indirect and remote causes.
28. See Walzer, chap. 10, "War against Civilians: Sieges and Blockades," pp. 160-75.
29. In addition, it is possible to regard the existence of the enemy nation as the ultimate source of a lethal threat not merely in terms of its expected effects but in terms of what it presently inspires. After all, if not for the existence of their people, what would the enemy combatants be fighting for?
30. My discussion here assumes traditional gendered roles. On various traditional stances of women-feminists and nonfeminists-toward their nations' wars, see generally Jean Bethke Elshtain, Women and War (New York: Basic, 1987). As women come to participate more in war as combatants, similar supportive roles will be filled by their partners and lovers.
31. Zohar, p. 608.
32. Similar critiques have been advanced by Jeff McMahan ("Self-Defense and the Problem of the Innocent Attacker," Ethics 104 [1994]: 252-90); and Otsuka.
33. Judith Jarvis Thomson, The Realm of Rights (Cambridge, Mass.: Harvard University Press, 1990), p. 41. Note that this is true only of "rights in the strictest sense," i.e., claim rights. In a broader sense, there can be a privilege right (a permission), which is not held against anyone. But for the justification under discussion here, it is crucial that the threat be in breach of his duty not to kill me, which is the correlate of my right (against him) not to be killed, so it is a claim right with which we are concerned.
34. Frances M. Kamm, Creation and Abortion (Oxford: Oxford University Press, 1992), p. 47. Thomson (The Realm of Rights, p. 39, n. 3) emphasizes that "Y's duty is discharged so long as the state of affairs does obtain and thus whether or not Y . . . makes the state of affairs obtain."
35. Frances M. Kamm, Creation and Abortion (Oxford: Oxford University Press, 1992), p. 47. Thomson (The Realm of Rights, p. 39, n. 3) emphasizes that "Y's duty is discharged so long as the state of affairs does obtain and thus whether or not Y . . . makes the state of affairs obtain."
36. This understanding avoids the accusation of circularity leveled by McMahan, in "Self-Defense and the Problem of the Innocent Attacker," pp. 275-78.
37. Compare Onora O'Neill's observation in "Children's Rights and Children's Lives" (Ethics 98 [1988]: 445-63, p. 453) that certain constructions of rights "depend heavily on the spatial, indeed territorial, metaphors in which they are standardly presented." The notion of sovereignty figures centrally in Nozick's discussion of the "nonaggression principle," which is fundamental in his formulation of rights, where he first suggests the right of killing an "innocent threat" (pp. 34-35).
38. Michael Clark, "Self-Defense against the Innocent," Journal of Applied Philosophy 17 (2000): 145-55.