We did not start this war. So understand, responsibility for every single casualty in this war, whether they’re innocent Afghans or innocent Americans, rests at the feet of the al Qaeda and the Taliban (Donald H. Rumsfeld, 4 December 2001).
Michael Walzer dubbed blaming your enemy for the cruelty of war as the ‘War is hell’ doctrine. 1 The attraction of this moral conception of war to U.S. political and military leaders is that it absolves them of responsibility for the death and suffering inflicted on innocent Afghans as a consequence of the U.S. bombing campaign against the Taliban and al Qaeda. It is estimated in a recent study of civilian casualties caused by U.S. attacks that as many as 3,767 Afghans may have died in the eight and a half week campaign. 2 However, U.S. officials repudiate such an assessment. The Bush Administration has refused to put a figure on civilian deaths but according to Under Secretary of State for Political Affairs, Marc Grossman, ‘when the military aspect of the struggle is over, it will be clear that the number of civilian casualties is very, very low’. 3 Indeed, the administration has repeatedly contrasted its caution in avoiding civilian casualties with the deliberate acts of civilian destruction inflicted by the forces of al Qaeda against the World Trade Centre on September 11. For example, Department of Defence spokesperson, Victoria Clarke, stated on 23 October that ‘U.S. forces are intentionally striking only military and terrorist targets. We take great care in our targeting process to avoid civilian casualties’. 4 State Department officials and the Chairman of the Joint Chiefs of Staff expressed similar sentiments of concern. What is significant about these statements is that they acknowledge a direct responsibility for the protection of Afghan civilians, and as such they sit uneasily with Rumsfeld’s contention that the US is innocent of the adverse moral consequences of the bombing campaign that it initiated on 7 October. In this essay, I will explore how far US targeting policy against the Taliban and al Qaeda is shaped by the interaction of these two discourses of war. Has the U.S. taken ‘great care’ to avoid civilian casualties or has it unreasonably privileged the lives of its own military personnel over those of ordinary Afghans? Are administration officials paying lip service to the norm of non-combatant immunity for political purposes? Or, are they adhering to the Rumsfeld view that the U.S. cannot be held accountable for the moral consequences of its actions against the Taliban and al Qaeda?
Walzer traced the idea of ‘war is hell’ to General Sherman’s moral justification for the forced evacuation of the population of Atlanta as he razed it to the ground during the Civil War. Sherman claimed to be innocent of the harm he and his men had imposed on the citizens of Atlanta, arguing that responsibility for such cruelty rested with those who had started the war, namely, the leaders of the Confederacy. Walzer points out that in response to General Hood’s plea for restraint on the part of the Unionist forces, Sherman replied: ‘War is cruelty and you cannot refine it…those who brought war into our country deserve all the curses and maledictions a people can pour out’. 5 Sherman destroyed Atlanta and pursued a ‘scorched earth’ policy across Georgia because he was determined to destroy the Confederate army and bring victory to the forces of the Union. As far as he was concerned, his forces were entitled to do whatever was necessary to achieve victory.
Sherman’s theory of where to locate responsibility for death and suffering in war is open to the fundamental objection that those who use force in a just cause should recognise a responsibility to protect civilians from the horrors of war. The fact that Sherman chose to evacuate the city of Atlanta before burning it suggests that even he recognised that war could be refined to some degree. 6 It is the belief that war can and must be fought with moral restraint that distinguishes the doctrine of ‘war is hell’ from the Just War tradition of moral theorising. This distinguishes between the jus ad bellum (the justice of the reasons for going to war) and the jus in bello (the justice of the conduct of war). We are interested in the latter, and what lies at the core of this part of Just War theory is the absolute principle that civilians are not legitimate targets of war. This norm is enshrined in all the instruments of international humanitarian law, notably the Geneva Conventions (including the two additional Protocols signed in 1977), and it is a moral standard against which states feel it necessary to justify their actions. The attack against the World Trade Centre on September 11 received almost universal condemnation by governments because it was a deliberate and systematic attempt to kill and maim civilians.
Why do Just War theorists argue that civilians are entitled to immunity from harm? The answer is a complex one but it rests upon the claim that only those capable of harming others can be denied protection of their right to life. Soldiers forfeit this right once they take up arms and become dangerous to combatants and civilians on the other side. By contrast, civilians who are not capable of harming others must be treated as innocent in wartime. Walzer argues that, ‘The relevant distinction is…between those who make what soldiers need to fight, and those who make what they need to live, like all the rest of us’. 7 Attacking munitions factories where civilians’ work is permissible but attacking their homes is prohibited. 8 Civilians only lose their immunity from attack whenever they ‘are actually engaged in activities threatening and harmful to their enemies’. 9 On this basis, Walzer was highly critical of U.S. targeting of Iraq’s power generating facilities during the Persian Gulf War. It is estimated that these strikes resulted in the deaths of as many as 100,000 Iraqi civilians through the loss of water, power and sewage facilities. 10
Even if states only attack strictly legitimate military targets, it is impossible, even with the technological development of precision weapons, to avoid the inadvertent killing and harming of civilians: there can be no guarantee that the guidance systems will not malfunction; there is the problem of human error in programming systems; the possibility that targets will prove to have been mistakenly identified; and the troubling issue of your enemy placing ‘human shields’ around military installations. In other words, the guarantee of immunity to civilians can never be absolute, a point which Western leaders frequently reiterate to justify their targeting policies. It is the fact that innocents will inevitably be hurt in war that underpins pacifism’s deontological rejection of the Just War tradition.
The problem for just war theorists is that if they were to commit to the principle of absolute protection for civilians in war, they would have to rule out using force to prosecute a just cause. As Brian Orend puts it:
Outlawing all warfare would ignore both the responsibility for interstate aggression and the implicit entitlement of a state to use necessary means (including armed force) to secure the lives and rights of its citizens from serious and standard threats to them…It is simply not reasonable to require a state to stand down while the aggression of another state wreaks havoc – murder and mayhem upon its people. 11
Just War theory is prepared to sanction the harming of civilians provided that it is not a deliberate act of policy, and can be justified in terms of the military advantage obtained from such attacks. To secure this controversial claim, the doctrine of ‘double-effect’ developed by Catholic theologians in the Middle Ages is invoked. The argument is that an act is permitted which has both good and evil consequences if the following conditions are satisfied: the evil outcome must not be intended; the adverse effect must not serve directly as a means to the good achieved; and crucially, the good must outweigh the unintended evil consequences of the act – the proportionality principle.
In pressing into service the argument of double-effect, Just War theory comes perilously close to exposing itself as morally incoherent. The principle of non-combatant immunity is predicated on the proposition that civilians are not engaged in the business of harm. Yet having done nothing to forfeit the right to life, the theory legitimates placing innocents in danger where they cannot be guaranteed safety from missiles that go astray and where the proximity of their homes and workplaces to military facilities exposes them to death and injury. Such a predicament begs the pacifist question of whether a war that cannot be fought without killing civilians should ever be resorted to. 12
An alternative answer to this moral dilemma is to accept the necessity of fighting just wars but insist that ‘due care’ 13 be taken in the protection of civilians. The Pentagon and State Department press briefings on the bombing campaign in Afghanistan are replete with references to U.S. forces exercising ‘care’ in targeting. But what does this mean? A key prerequisite is respect for the proportionality rule. This is codified in Protocol 1 to the 1949 Geneva Conventions. States have a legal obligation under Article 51 (5) (b) to refrain from attacks ‘which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’. 14 International humanitarian law establishes norms for judging legitimate conduct, but it does not obviate the fact that with the best of intentions, there will be disagreements over whether this obligation is met in specific cases. For example, NATO was criticised by human rights groups and other commentators for its strikes against the Federal Republic of Yugoslavia’s electrical grid during the Kosovo war. However, NATO defended this choice of target on the grounds that the military advantage was both ‘concrete and direct’, and the good outweighed the evil consequences in terms of inadvertent civilian casualties.
The elasticity of the proportionality rule leads Walzer to view it as ‘a weak constraint’ 15 on the targeting policies of states. He worries that the doctrine of double-effect becomes a ‘blanket justification’ for those deaths that are ‘unintended but foreseeable’. 16 To avoid this danger, Walzer insists that those who take up arms must not merely apply the proportionality rule since ‘Civilians have a right to something more. And if saving civilian lives means risking soldiers’ lives, the risk must be accepted’. 17 He illustrates this claim by pointing to those airmen of the Free French force who chose to incur the greater risks of flying low against German military targets in Occupied France during World War II because this minimised the risk of killing French civilians who lived near these targets. As one of the pilots recalled, ‘It was more risky but it also permitted greater precision’. 18 There is a limit to the dangers that we can expect the military to shoulder, and Walzer suggests that these are ‘roughly at that point where any further risk-taking would certainly doom the military venture or make it so costly that it could not be repeated’. 19
Does U.S. conduct of ‘Operation Enduring Freedom’ meet the requirement of ‘due care’? 20 Marc W. Herold argues that far from accepting a positive commitment to save civilian lives, the U.S. has sacrificed Afghan lives to protect American ones. 21 His indictment rests on two fundamental claims. First, he argues that the U.S. has caused many deaths by deliberately attacking the Afghan civilian infrastructure. According to Article 52(2) of Protocol 1, a military target is defined as ‘objects which by their nature, location, purpose or use make an effective contribution to military action’. 22 Although Rumsfeld claimed on 19 October that the U.S. was ‘focused totally on military targets’, 23 such claims depend upon accepting that U.S. attacks against the main telephone exchange in Kabul, the electrical grid in Kandahar, and the hydroelectric power station adjacent to the Kajaki dam constituted legitimate military targets. 24 If we apply the Just War principle that civilians only lose their immunity when they contribute directly to war-making activities, it is hard to justify U.S. attacks against facilities that sustain civilian life, and where such strikes resulted in hundreds of Afghans being killed.
The second aspect of Herold’s scathing critique concerns his claim that the U.S. should not have dropped bombs on Taliban and al Qaeda targets given the risks of unintended but foreseeable casualties. He writes, ‘It is simply unacceptable for civilians to be slaughtered as a side-effect of an intentional strike against a specified target…Killing civilians even if unintentional is criminal’. 25 This assertion raises a number of difficult issues. First, there is the question of whether Herold’s figure of 3,767 casualties exaggerates the number of civilians killed in the bombing campaign. 26 Secondly, there is the contention that some Afghan civilians have forfeited their right to immunity from attack by participating in war-making activities. Rumsfeld made this claim in response to reports that civilians had been killed after a bombing mission against ammunition dumps hidden inside tunnels close to the village of Khorum. Rumsfeld accepted that people had been killed who lived in the vicinity of the target, but denied that these people were innocent. He asserted that any civilians killed were culpable because they were part of the activity of war making. In the Secretary of Defence’s somewhat flippant words, ‘people who were in close proximity to these isolated ammunition dumps…were not cooking cookies inside those tunnels’. 27 However, this assertion has not been verified by any other sources, and it is equally plausible that those killed were innocent civilians. The presence of Afghans close to the bombing site did not necessarily render the attack unjust unless we are to adopt the pacifist premise (as does Herold) that it is unacceptable to place civilians at risk in war. Rather, it would be necessary to show that the resulting unintentional civilian casualties were outweighed by the ‘concrete and direct’ military advantage of the attack.
There is scope for legitimate disagreement over whether the destruction of Taliban and al Qaeda forces justifies x number of civilians being killed as a consequence of ‘collateral damage’. This phrase has become a euphemism for the death and destruction in civilian areas inadvertently caused by a correctly aimed weapon hitting its intended military target. However, what is striking is that U.S. officials have not invoked the proportionality rule in replying to allegations that they have been reckless when it comes to the protection of innocent Afghans. Rather, the U.S. has either chosen to dismiss such claims as propaganda or it has chosen to explain civilian losses in terms of mistakes in targeting. For example, the satellite guided Joint Direct Attack Munition (JDAM) is accurate to within 43 feet. The problem is that such technology is never one hundred per cent reliable. On 12 October, a JDAM missed its designated military target and hit a residential area in Afghanistan. 28 This was only one of a series of mistakes that the Pentagon has reluctantly acknowledged. No matter how sophisticated the technology becomes, it is impossible to eliminate completely the risk of civilian casualties. One commentator has estimated that ‘around five per cent [of these smart weapons] will miss because their guidance systems fail’. 29 Compared to previous conflicts, this is an unprecedented level of accuracy, but this has to be set against ever growing public expectations that such wars be fought with very low civilian casualties. In this context, it is worth pausing to consider that even a correctly aimed 2,000lb bomb ‘could cause death and casualties for hundreds of yards around the target site’. Consequently, even if all the Pentagon’s weapons were hitting their targets, we would still want to ask whether such attacks were justified.
The proportionality rule is designed to try and mitigate the hell faced by civilians in war. But it is predicated on the idea that there is a commitment on the part of combatants to try and reduce the exposure of civilians to danger. What stands in need of urgent examination is Marc Herold’s claim that the U.S. is so obsessed with reducing the risks to its own military personnel that it has chosen to employ tactics and strategies that maximise the harm imposed on innocent Afghans. If this view is accepted, then it turns Walzer’s notion of ‘due care’ upside down. Far from acknowledging a positive responsibility to protect Afghans from the misery of war, U.S. military strategists are choosing to impose levels of harm on innocent civilians to reduce the dangers faced by U.S. forces. The U.S. had a legal and moral right to remove the military threat posed by the Taliban and al Qaeda, but were there alternative military strategies that would have secured victory at a significantly reduced cost in terms of civilian casualties? Rumsfeld denied that the U.S. had any choice in the military strategy it had adopted given the overriding requirement to ‘defend the United States from the kinds of terrorist attacks which we’ve experienced’. 30
Such an assessment dodges the charge that the U.S. military should have been prepared to incur greater risks to save innocent Afghans. Tactics such as flying low over targets to ensure greater discrimination rather than attacking from above the range of anti-aircraft fire and ground to air missiles would have demonstrated a positive commitment to protect civilians. Such a change in tactics would have increased the risks to U.S. aircrews, but this has been a fantastically one-sided war in which U.S. aircraft have been able to operate with invulnerability over the skies of Afghanistan. What has also been missing from the campaign is reliable intelligence as to what constitutes a legitimate target. In the absence of such information, the U.S. should have refrained from attacking.
A commitment to zero-casualty warfare shaped the conduct of U.S. military intervention in the last decade. The war against the Taliban and al Qaeda suggests that this desire to reduce risks to a bare minimum continues to shape American military strategy. The U.S. has not deliberately attacked civilian targets and this places its actions in a very different moral category from those who perpetrated the events of September 11. However, there is sufficient evidence to suggest that the U.S. has not shown ‘due care’ in its treatment of Afghan civilians. The decision to strike against key elements of the infrastructure of the country demands an explanation from policy-makers, as do strikes against Taliban and al Qaeda targets where civilian deaths were foreseeable. At the very least, as Amnesty International USA pointed out, the Bush Administration has a legal obligation to justify such attacks in terms of international humanitarian law. 31
Cosmopolitans argue that all lives are morally equal and should be treated accordingly. To expect states to apply this principle when the lives of their soldiers is on the line is to establish unrealistic standards for the conduct of war. However, what can be expected of our political and military leaders is that they acknowledge a responsibility to protect civilians even if this requires exposing their soldiers to higher levels of danger. Political and military leaders should be held accountable for the care they exercise in protecting civilians in wartime. Against this standard, ‘Operation Enduring Freedom’ appears to fall some way short. In this regard, Rumsfeld’s invocation that ‘war is hell’ so we had better get it over with as quickly and as cheaply for our side as possible captures the mind-set shaping the U.S. military response to September 11. But in arguing that the U.S. should have done more to live up to the norm of non-combatant immunity, I am not implying that it is solely responsible for the civilians killed by its bombing raids. Rather, this responsibility is shared with the Taliban and al Qaeda. It was their actions that led to the war in the first place, and it is they who must bear an important share of responsibility for placing Afghan civilians in the hell that is war.
Acknowledgements: I would like to thank Anne Harris for her valuable comments during the preparation of this essay.