Tuesday, August 05, 2008
Two Conceptions of Proportionality
George Fletcher and Jens David Ohlin have co-authored a new book arguing that the international law regulating the use of force by states should be informed by domestic criminal law regulating the use of force by individuals. Their central argument is that the U.N. Charter should be read to incorporate the French criminal law doctrine of “legitimate defense”, which encompasses both self-defense and defense of others, in part because such a reading permits the defense of other states as well as national groups within other states without Security Council authorization. They also argue that international law should follow the MPC and allow the use of force if “immediately necessary on the present occasion” to eliminate a threat that is inevitable but not imminent. These positions are debatable but I want to focus on one area regarding which I think the authors misapply domestic criminal law concepts to the international context.
Fletcher and Ohlin observe that in domestic criminal law self-defense and necessity involve two very different conceptions of proportionality. The permissive conception of proportionality which derives from the law of self-defense allows one to inflict a greater harm on an attacker to avoid a lesser harm to a victim so long as the two harms do not differ too much in relative seriousness (for instance, we may kill to prevent a rape). The restrictive conception of proportionality which derives from the law of necessity requires an impartial balancing of the wrong to an innocent person that one proposes to commit against the harm to others that one would thereby prevent. Fletcher and Ohlin argue that the more permissive conception of proportionality should govern the killing of civilians (p.100) as necessary side-effects of direct attacks on legitimate military targets. But this seems badly wrong since the permissive conception was designed to govern the use of defensive force against attackers while the more restrictive conception was designed to govern the infringement of the rights of the innocent.
The authors write that “the action should be regarded as privileged because of the legitimacy of the dominant purpose” but it is hard to know what this could mean. A soldier’s actions are privileged in the sense of being immune from prosecution if and only if they are legal, so this conception of privilege can’t be used to establish the legality of an action. If the authors mean that the attack on the military target is privileged in the sense of being presumptively legal then this may be true, but only as true as saying that the use of defensive force against a wrongful aggressor is presumptively legal. By contrast, damage to civilians is presumptively illegal and in need of further justification just as infringements of the domestic law rights of the innocent are presumptively illegal and in need of further justification. The strange parallel the authors wish to draw, between criminal aggressors and innocent civilians, simply does not materialize.
The authors also suggest that their position fits the Rome Statute’s description of “clearly excessive” damage to civilian persons and objects but this seems wrong as well. “Excessive” and “disproportionate” are synonyms and “clearly” is an epistemic concept not a moral concept like, say, “grossly.” The Rome Statute can’t possibly mean that it’s okay to kill an excessive number of civilians just as long as the excessiveness isn’t “clear”. It seems pretty obvious to me that this is a conduct rule prohibiting excessive damage to civilians mashed together with a decision rule directing courts to convict only where the excessiveness is “clear”. The reason is that if the excessiveness of the damage is clear then the order to cause that damage is “manifestly illegal” and soldiers have a duty to refuse. If the legality of the order is arguable then soldiers should be protected if they obey. The wording of the Statute is conceptually confused (non-clearly excessive damage is not permitted but merely excused), but that’s no reason to advocate treating innocent civilians as if they were wrongful aggressors.
Incidentally, the authors may have missed an opportunity to make a genuinely interesting and morally defensible point, which is that the permissive conception of proportionality applicable to criminal aggressors should be applied to enemy soldiers, giving them far more protection than they currently enjoy. My own view is that the killing of enemy soldiers is impermissible unless doing so is a necessary means to achieving a military objective whose value is proportionate to their deaths. This contrasts with civilians, who can only be killed as a necessary side-effect of achieving such an objective. I used to think that there was only one difference between soldiers and civilians, namely the appropriate causal relationship between their deaths and military objectives (means versus side-effects). I now see that there is an additional difference, namely that the killing of soldiers should be evaluated using a more permissive proportionality standard and the killing of civilians should be evaluated using a more restrictive standard.
TrackBack URL for this entry:
Listed below are links to weblogs that reference Two Conceptions of Proportionality :
"The strange parallel the authors wish to draw, between criminal aggressors and innocent civilians, simply does not materialize."
Well, it does if you do not look at the individual but the state as an agressor. If you consider every citicen to be responsible for the acts of its government, a reduced standard of proportionality can indeed apply. In other words: If you are German in 1944, you are less entitled to protection than e.g. a Belgian. Of course, such a point of view (while resonating with me) is not really in line with the modern "individualisation" of public international law.
"My own view is that the killing of enemy soldiers is impermissible unless doing so is a necessary means to achieving a military objective whose value is proportionate to their deaths."
Killing enemy soldiers reduces the enemies strength and is therefore a military objective per se. One potential exception: almost concluded peace talks - but even then it can be argued that reducing the enemy's force will improve the propability that the other side does in fact give up.
BTW, re: the distinction between agressive and passive situations of necessity: this "French concept" is used by many civil law countries , e.g. Germany. It's not restricted to criminal law, either, but rather - as the French would put it - a "general principle of law". IIRC, the idea goes back to some lines written by Ulpian ...
Posted by: Positroll | Aug 6, 2008 11:03:39 AM
"If you consider every citizen to be responsible for the acts of its government, a reduced standard of proportionality can indeed apply."
That's not a very plausible view, though, is it? It certainly is not a plausible view in non-democratic countries and it's not clear to me that it's completely plausible even in democratic countries for all actions of the state. This does not mean that citizens are never accountable for the actions of their states, but the strong view you put forward here seems to me to be deeply implausible and would need a lot of work to be supported. Certainly it's not something that can just be asserted.
Posted by: matt | Aug 6, 2008 11:14:29 AM
“Killing enemy soldiers reduces the enem[y’]s strength and is therefore a military objective per se.”
I disagree. Let’s first distinguish between the overall strategic objective of war and the concrete and direct military advantage sought by particular attacks. As you observe, most conventional wars are won by forcing a central authority to either surrender or sign a peace treaty. This suggests that the killing of any particular group of soldiers may be strategically irrelevant. So, e.g., if your land forces are invading from the south it may be unnecessary to destroy a remote radar station along the northern border along with the barracks nearby. So the killing of enemy soldiers can be unnecessary to achieve the overall goal of securing peace on favorable terms. Can the killing of enemy soldiers be necessary but disproportionate relative to that overall goal? If the alternative is the loss of one’s own political independence or territorial integrity then presumably not under a permissive standard. However, the killing of enemy soldiers can be necessary but disproportionate relative to the concrete and direct advantage of a particular attack, even under a permissive standard, depending on the contribution of the attack to the overall war strategy. It’s of course a separate question whether international courts are equipped to adjudicate these sorts of issues, but military doctrine and just war theory aren't similarly limited.
Posted by: Adil Haque | Aug 6, 2008 5:32:50 PM
"As you observe, most conventional wars are won by forcing a central authority to either surrender or sign a peace treaty. This suggests that the killing of any particular group of soldiers may be strategically irrelevant."
I think our basic disagreement is on the use of the term "strategic". As Clausewitz tells us, war is always a political endeavor. Destroying military capabilities in other areas of the enemy country influences the willingness of their leaders to compromise (in your example because they will be afraid that further attacks on their northern radar stations will destroy costly equipment [on the military level, replacing them means less money available to fund the war in the south] and that their northerly neighbor might use the opportunity to expand its sphere of influence [so they will need a stronger reserve force to deal with a possible attack from the north, meaning less soldiers to fight your troops]).
(Also, in your example, the soldiers in those barracks might later be sent to the south to fight your army. Better to kill them now while they are concentrated in a small area, where you only need a few bombs to take them out, instead of risking the lives of you infantry fighting them later on the ground.)
Therefore I repeat my assertion: no enemy soldier is strategically irrelevant ...
(as said before, I might be willing to consider an exception in cases where peace talks are talking place and the parties are very close to an agreement. In such cases, however, there will almost always be a cease fire agreement established first, so the point is pretty moot ...)
This is not to say that there might not be good political reasons to use a more restraint approach, especially if you want the enemy country to become an ally later ...
Posted by: Positroll | Aug 7, 2008 5:23:36 AM
The comments to this entry are closed.