Ron Smith: More on justice and war

Two assumptions lay behind the argument in my recent posting, ‘Droning on’ (2 October).  One was that the appropriate moral framework, within which to discuss targeting in the on-going conflict between Islamic extremism and the West (the so called war on terror), is that of ‘war’, and not ‘crime’, notwithstanding that the actions of the insurgent parties are generally crimes, within the jurisdiction of the state in which they occur.  I also took it that the crucial criterion for legitimate combatant status in such conflict is ‘participation in the hostilities’.

I should add that I am taking the term ‘Islamic extremism’ to encompass both an attachment to a fundamental interpretation of Islam, which promotes a way of living as close as possible to the teachings of the Prophet, and, most importantly a commitment to violent means in order to achieve it. It was also assumed, in the previous posting, that the same principles (the same moral requirements) ought to govern all who are involved (on whatever side). 

Insofar as it is right to discuss these issues within the context of ‘war’ (which I define as the use of violence for a political purpose), it should be noted that this is how Geneva law sees these things:

“The provisions of the Geneva Conventions and Protocols must be fully applied ….. without adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the parties to the conflict.”  (Preamble to Protocol I (1977) to the Geneva Conventions of 1949). 

If we decide that, notwithstanding international agreement on the matter, this even-handed principle should not be applied, we need to articulate what degree of relative military weakness, or moral virtue for the cause (or whatever), would justify what degree of latitude in the application of international law, thus making it seem not entirely self-serving to an independent observer.  The only other policy would be to judge the two sides by different criteria.  In this case, the non-state (‘insurgent’) party would be merely criminal and no use of violent means would be justified.  There are obvious problems here, too.  Are we to condemn the Syrian people who are presently trying to defend themselves against a government that is using the major weapons of war to resist democratic change?  Clearly, what they are doing is contrary to Syrian law.

To return to the ‘war on terror’, the recent shooting by a Taliban gunman, of a 14 year old schoolgirl (Mala Yousafzai) puts the issue of ‘civilian’ victimisation in a very clear light.  In this case the gunman identifies his target by name before firing, so there is no possibility of a collateral harm defence.  The person that was intended to be harmed, was harmed.  Indeed, a Taliban spokesman has confirmed that if she survives they will, again, try to kill her because she is a ‘symbol of western infidels and obsenity’.  She is a combatant in a ‘cultural’ war (a ‘clash of civilisations’, as Professor Huntington has said.).  How are we to view this? 

There is an obvious move to make here.  At fourteen, Mala Yousafzai is not a legitimate combatant.  She is too young to be a legitimate target, whatever she is doing.  This is very likely to be the basis of the popular outrage in Pakistan at the incident, where plenty of persons have been killed for their opinions over recent decades, and without much outcry.  However, the larger point must surely be, that she was not ‘participating in hostilities’; she did not represent a physical threat to anyone (unlike, say, a fourteen year-old advancing on potential victims, carrying an AK47).

To take another case, how are we to view the recent assassination of the US Ambassador to Libya?  Again, there is no doubt that he was the intended target but should he be counted as a combatant?  He was not a member of the American armed forces but he was part of the US Administration.  On the other hand, he was not obviously participating in the hostilities; that is to say, he was not himself a threat to adversary parties.  To apply the test in Protocol I (Part 3, Article 44) he is not engaged in an attack, or in activities preparatory to an attack.  On the other hand, that might have been said of some of the Taliban persons I listed in the previous discussion (persons ‘carrying messages’), insofar as they were intended/acceptable victims.  We are on difficult ground here, with distinctions hard to make and judgements difficult to sustain but we cannot resolve these dilemmas by making strong moral claims in respect of some actions whilst, at the same time, ignoring others.

International humanitarian law, based on the Hague and Geneva Conventions and precedents from Nuremberg and the International Criminal Tribunal for the former Yugoslavia, was developed with the model of formal (interstate) conflict in mind.  It is not easily applied to contemporary informal, asymmetric warfare.  But it is not impossible.  The process begins with the Geneva principle of holding all parties to the same standard and protecting those who are not directly part of the violence.  It also requires us to condemn, in an unqualified way, those who do target the innocent and those who support them.