Steve Sachs Duke


Wednesday, June 25, 2003


Crowd control and total war. On June 18, U.S. troops fired on protesters in Baghdad who were throwing rocks and bricks at their vehicles. According to a picture caption in the New York Times, "An American officer said his forces lacked nonlethal forms of crowd control, like rubber bullets." Two civilians were killed in the shooting.

As I read the caption, two thoughts went through my mind. The first was disappointment and anger--that American troops should be deployed without the appropriate equipment, and that it should have led to the unnecessary deaths of civilians. Our troops ought to have access to every nonlethal tool in peacetime for the same reason they ought to have access to every lethal tool in wartime: to be able to accomplish their mission with the least danger to themselves or others. Right now American troops are putting themselves in unsafe situations, because their choice is between doing nothing and opening fire--and it's costing the lives of the people we fought a war to help. The shooting may not be over in Iraq, but right now the U.S. Army is now also the Baghdad Police Department, and someone ought to get our troops the supplies they need.

The second thought was to wonder about the moral status of the soldiers' actions. Without commenting on these shootings in particular (I don't know enough about the exact sequence of events), how ought soldiers to act when faced with rock-throwing protesters? The protesters are civilians, it is true, but 300 people throwing bricks could also pose a legitimate threat to the troops. Assuming that a crowd does not disperse when warning shots are fired, and that they so outnumber the troops as to make individual arrests infeasible, how should the troops respond? And on what doctrine of just war should an answer to this question rely?

One possible suggestion was made by Thomas Nagel in his famous essay "War and Massacre" (Philosophy and Public Affairs 1:2 (Winter 1972), pp. 123-144). Written during the Vietnam War, the essay sets out Nagel's opposition to the doctrine of "total war," which holds that almost any tactics in war--attacks on civilians, Sherman's march to the sea, the use of the atomic bomb on Hiroshima and Nagasaki--are acceptable if they will shorten the war and reduce the total amount of death and devastation. Nagel rejects this view and holds that regardless of the consequences, certain tactics are beyond the pale. In the essay, he seeks an alternative vision of justice in bello, a middle ground between total war and complete pacifism: he wants to explain how could it be moral to conduct a just war and to kill enemy soldiers, without accepting that the ends always justify the means.

Two potential arguments are ruled out at the start. First, because Nagel is concerned with means rather than ends, killing an enemy soldier can't be acceptable simply because of its effects, such as advancing a just victory or preventing the moral evils that would follow defeat. If the effects were all that mattered, it should be just as acceptable to target deliberately a large number of innocent people, if doing so would achieve the same good results.

Second, Nagel claims, we can't argue that the enemy soldiers are themselves acting immorally and therefore deserve to die. To illustrate the point, he contrasts the example of an unwilling enemy conscript, who drives a tank at us "with profoundest regrets and nothing but love in his heart," with that of "a wicked but noncombatant hairdresser," who wholeheartedly supports the bloodthirsty aggression of his government. One might wonder whether in fact the conscripted soldier could be acting morally while he is fighting for the wrong side in an unjust war--but in any case, the point is taken. Even in war, we do not kill people solely because they are evil.

Instead, Nagel argues, the division between combatants and noncombatants--those whom it is acceptable and unacceptable to target--must be at least partly based on an assessment of "immediate threat or harmfulness," and must target the cause of the danger rather than "peripheral" factors. The latter distinction forces us to separate the enemy soldiers' existence as human beings from their existence qua soldiers, as Nagel writes:

The threat presented by an army and its members does not consist merely in the fact that they are men, but in the fact that they are armed and are using their arms in the pursuit of certain objectives. Contributions to their arms and logistics are contributions to this threat; contributions to their mere existence as men are not.

This distinction between men-as-soldiers and men-as-men has the potential to explain a number of our intuitions surrounding the laws of war. While it might be acceptable to kill the conscripted tank-driver, or to bomb the munitions factories that supply them with arms, it is not acceptable to kill the medical personnel who bind up combatants' wounds (even if it helps them to fight another day), or to bomb the civilian farmers who supply the enemy troops with food. The results of applying this distinction are not always clear--is a ball-bearing factory a legitimate target when most of its output goes into tanks?--but neither are our intuitions as to appropriate tactics.

On the same grounds, Nagel argues, the force that is used against the men must be commensurate with the threat they pose as soldiers. It is unacceptable, for instance, to use weapons that are "designed to maim or disfigure or torture the opponent rather than merely to stop him." The use of napalm--"an atrocity in all circumstances that I can imagine, whoever the target may be"--does not merely stop enemy soldiers, but causes great pain, horrible burns, and permanent scarring. What justifies force is the immediate threat, and what goes beyond the stopping the threat is ipso facto unjustified.

In drawing this distinction, Nagel is not weighing future pains and pleasures; he is not arguing that the pain of napalm is so horrible as to render any possible benefits from its use irrelevant. In fact, he fully admits that such tactics may be of great benefit in a war, and would argue against their use even if it would speed the day of victory (and thereby save lives). Moreover, even if one invented Napalm LiteTM, which had the same military value but 30 percent less scarring, its use would be just as immoral; it would still be by its nature aimed at the men and not the soldiers. Using napalm is analogous to killing civilian hostages or burning a village to root out the guerrillas; as a tactic it is inherently mistargeted, and causes harm in ways that a just war--regardless of how serious the cause or how significant the benefits--cannot license.

Yet Nagel’s claim here seems to raise insoluble problems for our practical decisions in cases of self-defense--and here we return to the question of crowd control in Baghdad. Suppose that the U.S. troops in Baghdad are put in danger from rock-throwing protesters, and suppose further that they are morally justified in using some kind of force to disperse them. However, by Nagel's argument, they may be required to use rubber bullets rather than live fire, because the former are sufficient to avoid danger and to disperse the crowd. The use of deadly force in such circumstances would be greater than the minimum amount of harm physically required to prevent the attack, and would therefore target the protesters as human beings and not merely as throwers of rocks. Furthermore, such unnecessary force cannot become "necessary" simply because the soldiers have not been issued rubber bullets, or because they were forgetful and left all their rubber bullets at home. Necessity, for Nagel, is defined by the nature of the threat and not by the tools available to counter it. If would be wrong to inflict a certain amount of harm on others--as it would be in this case, since incapacitation would accomplish perfectly the desired end, and no purpose is served through the extra killing or suffering--it surely does not become less wrong simply because one only has access to blunt instruments. (If one doubts this, imagine what Nagel would say if the soldiers had no available weapons except napalm--the use of which is "an atrocity in all circumstances I can imagine.")

By Nagel's argument, then, the troops under threat may never fire back, no matter how many of their fellow soldiers have been killed or injured, so long as the weapons they would use are morally defective. But soldiers are rarely so lucky as to have morally acceptable weapons at their disposal, which would neutralize the protesters while causing the least possible degree of harm to the men. What might such weapons be--painless stun guns? Spiderman-silk? And who knows what wondrous anti-personnel devices the future might hold? Under Nagel’s framework, I see no way to avoid holding soldiers responsible for living in a century when the optimal weapons have not yet been invented. Even if the troops are morally justified in using some kind of force against the protesters, there is no kind of force in existence today which they would be morally justified in using--which comes close to a practical contradiction. Following Nagel's advice would force the soldiers to be pacifists in practice, if not in theory. And this absolutism is a direct consequence of any doctrine in which the men-as-protesters may be targeted, but the men-as-men are sacrosanct.

The problems with Nagel's doctrine, however, aren't limited to the case of protesters. Imagine that an enemy brigade is crossing the border as part of an aggressive and immoral invasion. How could it be acceptable to attempt to kill the soldiers, given that the threat they represent would be removed if one merely immobilized them? As Nagel acknowledges in a footnote, "ordinary bullets, after all, can cause death, and nothing is more permanent than that." Only rarely would it be the case that an attacker must be killed in order for the danger to be averted; in most cases, the moral agent desireth not the death of the sinner, but rather that he may turn from his wickedness and live. Nagel briefly considers the argument for "incapacitating gases" to knock troops unconscious without killing them, but he notes that the general taboo on chemical warfare might be sufficiently valuable to justify prohibiting them. (A friend of mine once argued on similar grounds for the morality of mild biological weapons--say, a nasty stomach flu that incapacitates soldiers but doesn't kill anyone--at a Pugwash conference, where the idea was somewhat heatedly rejected.) But here Nagel falls victim to his own critique: his endorsement of bullets and his acceptance of the taboo on chemical weapons are purely based on an assessment of the consequences. The policy is designed to achieve desirable ends--the preservation of a norm against chemical warfare by aggressor nations--through unacceptable means, namely the deliberate use in war of death-inflicting bullets when sleeping gas would serve the purpose. If the choice were between sleeping gas and napalm, which would Nagel pick?

The only possible conclusion from these considerations, other than a pacifism-in-practice, is that necessity can be affected by what weapons are available--that the troops may, in order to protect themselves or others, use lethal force where nonlethal force would do. But once we concede that the troops may, in some circumstances, use more force than is absolutely necessary (in Nagel's sense) to avoid the threat, then the entire concept of distinguishing between men-as-men and men-as-rock-throwers unravels. If we may use more force than is physically necessary to counter the immediate threat, then might not every weapon, even napalm, be acceptable under the proper conditions? And if Nagel is right, and the same doctrine explains both the limits on acceptable weaponry and the limits on acceptable targets, then are not the latter conclusions (no bombing of infrastructure, etc.) similarly suspect? The bounds on acceptable conduct still exist--one may not cause more harm than would produce the best consequences--but our intuitions begin to push us towards a doctrine of ends justifying means.

Perhaps, my brother suggests, one reason why this push is not immediately apparent is that the means we consider today are so different from those used in earlier conflicts. There have been massive advances in military technology over the past half-century. In World War II, leaving aside the direct assaults intended to break the will of a civilian population (e.g., Dresden and Tokyo), even attacks on purely military targets often required blind carpet-bombing in nighttime raids. Today, when we can sometimes achieve better results simply by attaching a GPS system to a block of concrete, such bombing (regardless of humanitarian concerns) would be considered woefully impractical. Similarly, the fighting in Iraq was primarily conducted by a handful of divisions; during World War II, the continent of Europe was the battlefield of millions of men under arms.

For the past decade, the wars in which the U.S. has been engaged (and those in which it is likely to be engaged in the future) have not been territorial conflicts between great powers, but wars against governments and warring factions who may or may not be supported by the people subject to their rule. The impact of conflict on civilians, far from being a new aspect of war, has instead been diminished (within living memory) by several orders of magnitude. By historical standards, we now fight wars with extraordinary accuracy and concern for civilian casualties; the use of carpet-bombing or nuclear weapons against civilian targets is near-unthinkable, in part because there are almost no military ends for which doing so would be an effective means. As a result, our moral assessment of certain tactics has changed--not necessarily because they have been recognized as unacceptable, regardless of the availability of alternatives, but instead because today we have more alternatives available.

Noting this change doesn't entirely answer our questions. In particular, beyond expressing a general optimism as to the progress of life-saving technology, it doesn't help the troops who have to decide what to do with the weapons they have. But it does remove some of the stigma attached to a consideration of ends and means, and gives us reason to think that even rules unconstrained by Nagel's distinction might provide for humane limits on war.




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