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Perverse arithmetic

"You're not allowed to kill civilians" is not exclusively, or even primarily, a legal statement.

Like the Universal Declaration of Human Rights, this prohibition is spelled out in international law. But, like those rights, it precedes this particular legal formulation. Just as the Universal Declaration is not the source of the human rights it affirms, so too international law is not the source of the prohibition against killing civilians.

But let's save the metaphysics for another time and consider, for a moment, the existence of this prohibition in international law. Such law exists, by they way, in treaties and agreements ratified by the United States and thus, for Americans, is not only "international" law, but also national law.

The prohibition against killing civilians is most explicit in two places: the rules regarding noncombatant immunity and those regarding proportionality.

Aha! say the scribes and the Pharisees and the teachers of the law, neither of these prohibitions is absolute! Each acknowledges the possibility of exceptions. So if each only prohibits the killing of civilians, say, 9 out of 10 times, then such killing must be permissible 2 out of 10 times.

No. The mistake here is one of arithmetic. Two 9/10 prohibitions do not add up to a 1/5 permission. This is a multiplication problem — a fraction of a fraction: 1/10 x 1/10 = 1/100.

The arithmetical mistake arises from a larger problem involving perverse intent. Both prohibitions are exactly that: prohibitions. To approach them seeking permission is to misread them — to read them precisely backwards.

Each prohibition, it is true, acknowledges the possibility of exceptions — exceptions based, as we discussed earlier, on the principle of double effect. And double effect does not allow for perverse intent. It does not provide permission for those seeking permission.

Earlier, we considered the illustration of a surgeon:

A doctor, for example, is bound by oath to "do no harm." Slicing someone with a razor-sharp knife would certainly seem to constitute doing harm. But if the doctor is slicing someone with a scalpel because this cutting is an inescapable part of surgery needed and intended to heal, then the doctor may — perhaps even must — perform such slicing without violating her oath. The harm done by the slicing is an unavoidable second effect and is not the doctor's main intent. … The key elements here are the intent, the justice/goodness and necessity of the primary effect, and the inescapable/unavoidable nature of the secondary, unintended effect.

The cutting of the surgeon's scalpel is a secondary, unintended effect and it is permissible only if it is unavoidable in the pursuit of the doctor's actual intent, which is to heal. If our hypothetical doctor were a sadist, more interested in the cutting than in the healing, then her use of the scalpel would not be permissible.

Let me put it more plainly: An appeal to double effect can excuse the unavoidable, but it does not grant permission. The very seeking of that permission negates the appeal.

Or, to put it even more plainly:

You're not allowed to kill civilians.

  • Beth

    An appeal to double effect can excuse the unavoidable, but it does not grant permission.
    I don’t really understand this. Is there a distinction between “excusing” and “granting permission”? If so, someone will have to explain it to me. Or are you saying that excusing something in a specific instance doesn’t grant blanket permission? If so, I agree.

  • Bugmaster

    Yeah, I don’t get it, either. How can the surgeon perform the heart bypass to save your life, if he does not have permission to cut you open ? If he does not have permission to cut you open, and he is a moral person, then, logically, he would never cut you open in the first place, and the question of obtaining excuses becomes moot.

  • pharoute

    Excusing the unavoidable:
    Mother: “You may not have any cookies before dinner.”
    6 year old: “OK”
    Mother: “Please get me the can of green beans from next to the cookie jar while I go out of the kitchen for 10 minutes”
    Granting Permission:
    Mother: “You may not have any cookies before dinner. However if at anytime I ask you do something in the kitchen and a few cookies should happen to get eaten, you won’t be punished.”
    6 year old: “Yes!”

  • Skyknight

    The patient is granting permission to be opened up, to elude the worse harm of his/her ailment sticking around. In a sense, the lack of operation is a greater harm. The patient can’t avoid harm absolutely, but the doctor can make the harm less than it might be…

  • eyelessgame

    And yet, isn’t this secondary-harm thing exactly what the warfolken think is going on?A [democracy], for example, is bound by oath to “[kill no civilians].” [Bombing a city during a war] would certainly seem to constitute [killing civilians]. But if the [nation] is [bombing a city] because this [bombing] is an inescapable part of [war] needed and intended to [promote democracy], then the [nation] may — perhaps even must — perform such [bombing] without violating her oath. The harm done by the [bombing] is an unavoidable second effect and is not the [nation's] main intent. … The key elements here are the intent, the justice/goodness and necessity of the primary effect, and the inescapable/unavoidable nature of the secondary, unintended effect.
    I agree with you, I just don’t think the example of the surgeon illustrates the point well, at least not without a cleare exposition of what makes it different from the pro-war argument.

  • eyelessgame

    In the case of the surgeon, there are things that differentiate her, but unfortunateley also make her inapplicable as an analogy. First, the surgeon’s knife does no irreparable harm in the course of the good being accomplished; second, there is no conscious entity made worse off by the surgeon’s knife (except in the very immediate, transient term).
    The surgeon forced to amputate a limb is still saved by the second case: amputation can be done to eliminate cancer, but it is removing a subsidiary part that is not entitled to separate consideration; your arm or your appendix or the nodule in your breast are not conscious actors and do not have rights.
    Why is the argument wrong that (intentional action) A, expected to result in X civilian casualties, is preferred over (byproduct of action) B, expected to result in X+Y civilian casualties, where Y is large? I don’t agree with it, not necessarily anyway, but it’s part of the argument for Hiroshima and Nagasaki.

  • eyelessgame

    And the frequency of my tyops is utterly atrocious.

  • eyelessgame

    And the frequency of my tyops is utterly atrocious.

  • bulbul

    so too international law is not the source of the prohibition against killing civilians.
    That’s a very good point. So what is the source of the prohibition?

  • Fred

    eyelessgame –
    The surgeon is not an analogy for anything, merely a (textbook) illustration of double-effect.
    When it comes to applying this principle, particularly to warfare as military officers must do, daily, I try to avoid getting bogged down in analogies.
    I’m not sure, though, that double-effect factors into a discussion of Hiroshima and Nagasaki. These were not instances of collateral damage, but of intentional damage. The rationale/defense of this damage is not usually an appeal to double effect, but rather the assertion that “the ends justifies the means.”
    Beth –
    Fuzzy wording on my part. Would the distinction be clearer if “excuse” were, instead, “pardon”? It’s a bit like the difference between “allow” and “allow for.” The point is that double-effect does not condone, or approve of the secondary effect — the collateral damage. This secondary effect is still regarded as an evil. The prohibition against this evil remains, but is trumped in this particular instance by the necessity (and it must be an inescapable necessity) of the larger good.

  • LMM

    eyelessgame — The purpose of democracy is not to “promote democracy”. Democracy is not, or at least should not be, evangelical (apologies to Fred) — what works for us doesn’t necessarily work for someone else.

  • Puck

    Y’r nt llwd t kll cvlns – bt whn yr fvrt gy ttrny Gnrl srrnds chrch n Wc, Txs t prvnt ths nsd frm lvng, thn ncnrts vryn nsd ncldng 28 chldrn – tht’s K.
    Mrlty s wht th rlng clss mpss n th gntls – t mk s ct gnst r wn bst ntrsts.

  • Fred

    Mr. Gibson –
    I don’t mind you posting here under the name “Puck,” but when you get sloppy on tequila and start ranting about the gays and the Jews, you get disemvoweled (just like in Braveheart).
    So Puck off until you read this:
    http://slacktivist.typepad.com/slacktivist/2006/07/ynatkc_contd.html

  • Puck

    Oh yes you do. That’s why you censor what I say. lol.

  • Paul

    I’m not sure that the prohibition on killing civilians goes far enough. I think we should consider that rule that we’re not allowed to kill anybody. It’s a tough one for governments and all those sorts of guys, but it just might catch on.

  • Beth

    Would the distinction be clearer if “excuse” were, instead, “pardon”?
    Yes, that does help, thanks. It helps with “You’re not allowed to kill civilians,” too. I’ve had some trouble with the word, “allowed,” and this distinction helps to clarify it. It also helps me understand pharoute’s example. I don’t think temptation actually excuses cookie stealing, but I could certainly pardon a six-year-old for giving in to it.
    This secondary effect is still regarded as an evil. The prohibition against this evil remains, but is trumped in this particular instance by the necessity (and it must be an inescapable necessity) of the larger good.
    That’s still a tough concept. It seems to involve a paradox. Say I’m sitting on the roof with my sniper rifle by my side, and I spot a man who’s about to detonate a nuclear bomb. I think that I’d have a positive moral obligation to shoot him because it would be evil to stand by and let the bomb go off. But say the bomber was surrounded by children and instead of the rifle, I had a bazooka. The obligation to save perhaps millions of lives still exists and the only way to save them is to shoot, but since that would kill the children as well as the combatant, it is clearly evil (though pardonable). Can something be both prohibited and an obligation? That’s an extreme example, but I suspect most legitimately pardonable killings involve at least some obligation to act.
    Still, that I can’t shake the feeling that killing innocent bystanders is never really ok, even in my extreme example. Whether I fired or not, my choice would probably haunt me for the rest of my life (though if I didn’t fire, that wouldn’t be very long). So maybe there can be forced-choice situations where the only options are evil ones.

  • Rob H.

    “You’re not allowed to kill civilians.”
    I’m sure it is more accurately written as “You’re not allowed to TARGET civilians” as if any country were not allowed to kill civilians, then waging war even in defense would break international law. No war has been waged without the bloodshed of children and other noncombatants.

  • Fred

    Rob –
    I appreciate your point, but “target” is still incomplete. There are instances (variations on Beth’s example above, say, in which the Good Guy has the missile and the Bad Guy has the bazooka) in which a legitimate military target would be off-limits because the resulting collateral damage would be excessive. In such cases, the problem is not the targeting, but the killing. Which is also an example of how proportionality and noncombatant immunity reinforce one another via multiplication.
    You’re right that such rules are an attempt to limit and restrain war, not to abolish it. But war tends to overwhelm all such attempted constraints, so I think it’s best to interpret and apply them as strictly and consistently as possible and to avoid, as much as possible, making concessions to or compromises with grim “realism.”

  • Jesurgislac

    Rob: I’m sure it is more accurately written as “You’re not allowed to TARGET civilians”
    I’m sure the US military wishes it were. I’ve had many arguments with Americans who argue earnestly that even though they accept that yes, the US military carries out attacks on civilian areas that the US military knows will kill civilians (for example, dropping cluster bombs inside cities) this doesn’t constitute “targetting civilians” because although the US military is in fact deliberately killing civilians, and knows it is, they are doing so to achieve another objective (usually, to make sure fewer US soldiers die by wiping out any combatants who might be using that street at the time the cluster bomb is dropped). Effectively, it appears the US military avoids “targetting civilians” by mind-control: US soldiers dropping cluster bombs on city streets, or aiming missiles at apartment blocks, are apparently instructed to avoid thinking of the civilians they know they killing, and only think of the combatants they hope they are killing. Because the civilians targetted for death are not being thought about while the US military are killing them, that’s by itself enough to excuse the US military from being excused for targetting civilians.
    Very odd. Curiously enough, the Americans who argue thus are not prepared to allow that anyone who kills American civilians may have been thinking only of their goal when they did so, and can thus be excused along the same lines. (I suspect that the men who piloted the passenger jets into the WTC and the Pentagon did so by telling themselves they were doing so for their chosen goal, not by thinking “If I do this, how many civilians am I killing?” and if mind control is enough to excuse civilian-killing, then those al-Qaeda operatives also stand excused.)
    It should go without saying that I disagree, and agree with Fred: you’re not allowed to kill civilians.

  • Beth

    the civilians targetted for death are not being thought about while the US military are killing them
    And not only then. Remember, “We don’t do body counts.” No one is ever supposed to think about Iraqi civilian deaths. Of course we’re not supposed to think about US military deaths either. No mass coffin photos, and reading all the names on tv is practically an act of treason.

  • Beth

    Still, I don’t think any of this makes the nature of the target unimportant. Fred described it as a multiplicative factor, so while targeting civilians is never allowed, going after a military target doesn’t get a free pass either. Maybe there are cases where the benefits are so great that even targeting civilians is pardonable, but I think they’d be very rare.

  • Recall

    The Madrid bombings got Spain out of Iraq. The IEDs blowing up American troops don’t seems to be as effective.

  • Jesurgislac

    Beth: Maybe there are cases where the benefits are so great that even targeting civilians is pardonable, but I think they’d be very rare.
    And, like justifying torture by coming up with some rare scenario where torture might be pardonable, such unusual circumstances cannot be made generally applicable.
    Recall: The Madrid bombings got Spain out of Iraq.
    I think you are a little muddled.
    Spain went into Iraq against the will of the majority of Spaniards because of a conservative government (“People’s Party”) who supported the US. The Madrid bombings happened just before the election; the conservative government attempted to blame the Basque organization ETA for carrying them out – when the evidence showed it was an Islamic terror group cell.
    When word of their lies got out, PP lost the election, and thoroughly deserved to do so: a government that tells lies to the people about such an important incident deserves to be kicked out of power, I’m sure you’ll agree.
    The party that won the election, “Spanish Socialist Workers’ Party” (PSOE) had run on a popular platform that included Spain’s withdrawal from Iraq. Withdrawal from Iraq was on their platform long before the Madrid bombings, and it’s clear from contemporary evidence that it was not the bombings themselves that lost PP the election, it was the PP government’s decision to lie about who carried out the bombings.
    That’s what happens when a government tries to lie to the people in a country with a free press, unlike the whipped and tamed press in the US: they get kicked out of office.
    The IEDs blowing up American troops don’t seems to be as effective.
    And the Bush administration got away with lying the US into war with Iraq, too: what else is new?

  • Recall

    Regardless of the exact chain of events, if the bombings hadn’t happened, Spain probably wouldn’t have pulled out.

  • Jesurgislac

    Recall: if the bombings hadn’t happened, Spain probably wouldn’t have pulled out.
    If PP hadn’t lied about the bombings, they might well have won the election, and Spain wouldn’t have pulled out.
    The direct reason Spain pulled out was because PSOE won the election, and they had withdrawal from Iraq on their party platform – when they won the election, withdrawal was inevitable.
    And the unpopularity of the PP government was not caused intrinsically by the bombings, but by the fact that they lied about the bombings.
    Of course, al-Qaeda supporters will doubtless want to claim that it was “the bombings” that got Spain to withdraw, rather than the government’s folly in lying to try to gain electoral advantage. Is that why you’re trying to claim it was the bombings that got Spain to withdraw?

  • Beth

    Beth: “Maybe there are cases where the benefits are so great that even targeting civilians is pardonable, but I think they’d be very rare.”
    And, like justifying torture by coming up with some rare scenario where torture might be pardonable, such unusual circumstances cannot be made generally applicable.
    Exactly. That’s one of the reasons Fred’s “can excuse/pardon, but not grant permission” works so well.

  • Beth

    Everyone set your tivos. TCM is showing Fail-Safe this Sunday at 10:00 AM (EST). Fail-Safe confronts a lot of the issues raised in Fred’s “INOTKC” series It’s a cold war flick, but posits a situation where “us vs. them” is no longer operative, and there’s no room for aggressor/victim, national guilt, “just vengance” or any of the other the other lies and half-truths people use to cloud the moral issues. It’s a gripping film, and a must-see for anyone interested in exploring the question of “double effect”.

  • bulbul

    Regardless of the exact chain of events, if the bombings hadn’t happened, Spain probably wouldn’t have pulled out.
    Translation: I’m not listening to a word you say.

  • Recall

    And the unpopularity of the PP government was not caused intrinsically by the bombings, but by the fact that they lied about the bombings.
    Caused intrinsically? You’re splitting hairs. If it makes you feel better, let’s go with “The Madrid bombings indirectly led to Spain’s withdrawl from Iraq.”
    Of course, al-Qaeda supporters will doubtless want to claim that it was “the bombings” that got Spain to withdraw, rather than the government’s folly in lying to try to gain electoral advantage. Is that why you’re trying to claim it was the bombings that got Spain to withdraw?
    Is your opposition to al-Qaeda predicated on the belief that it didn’t?

  • Jesurgislac

    Bulbul: Translation: I’m not listening to a word you say.
    Good translation.
    Recall: Caused intrinsically? You’re splitting hairs.
    Ah: so “splitting hairs” is the new term for “you’re trying to confuse me with what actually happened as opposed to what I want to have happened”.

  • bulbul

    “The Madrid bombings indirectly led to Spain’s withdrawl from Iraq.”
    Well, yes. Quite indirectly, actually. But this statement is very far from
    Regardless of the exact chain of events, if the bombings hadn’t happened, Spain probably wouldn’t have pulled out.
    Oh and on the off chance you are implying that the Spanish (and, by extension, all Europeans) are cowards who are not willing to stand up to the threat of blah blah blah, I got two words for you: puck you.

  • Recall

    I’m not a terrorist. I’m not an idiot rightwinger. I’m a peaceloving liberal son of two peaceloving liberal hippies. An anonymous cyberspace bum vouching for himself doesn’t count for much, so feel free to call bullshit. If you don’t want to have an honest discussion with me, just give the word and I’ll stop polluting the moral purity of this comment thread.

  • Jesurgislac

    Recall, you are showing no sign at all of wanting to have “an honest discussion” with either me or with Bulbul.
    You are the one who wants to ignore the fact that the PP lied about the Madrid bombings for electoral advantage.
    You also want to ignore the high probability (Spanish commentators of all political persuasions agreed) that when the PP lied, that lie lost them the election.
    You pretend that neither of these things exist, and want to argue, dishonestly, that the Madrid bombings are why Spain withdrew from Iraq.
    When you are ready to stop arguing dishonestly, do let us know.

  • Silly

    Would the surgeon analogy be:
    “So, I’m not allowed to slice random people on the street? But surgeons slice people with cancer for their own good. And since random people on the street might have cancer, doesn’t that mean I’m allowed to slice random people on the street?”
    ?


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