One of the inevitable consequences of any Middle Eastern conflict is the collateral damage caused by the unprovoked and disproportionate attacks which tend to be launched by Michael Walzer on his own credibility (this joke first made on CT here). His latest is a waffly piece of blah in the Even The Liberal New Republic, on the general subject of “proportionality” and collateral damage to civilians.
SPOILER ALERT: don’t click on the “read more” link if you don’t want to find out whether or not he decides that the State of Israel is broadly justified in its latest actions.
I kid, I kid, of course. I have no real problem with the way he shapes the argumentation around the policy; Walzer has built up a huge amount of social capital in the political philosophy world, he can’t take it with him and if he wants to spend it this way, fair enough.
What irks me though, is that throughout the piece, Walzer asks important questions in a manner which is meant to suggest that he is the first to raise them, when for the most part they are extremely cut and dried points of international humanitarian law. The entire piece is like an encyclopedia illustration for the concept “Seemingly Rhetorical Questions Which Invite Terse Literal Answers”.
One might almost think he doesn’t quite realise that momentous though it was, the publication of “Just and Unjust Wars” was not the most important thing in the subject area to happen in 1977; that was the year that the Protocols to the Geneva Convention were agreed. And the really striking thing is that the Protocols (particularly Protocol 1, Article 57) actually answer most of the questions Walzer asks, and do so for the most part in a much clearer, more intellectually rigorous and more morally acceptable way than anything he says himself, after thirty years’ reflection on a theory he largely invented.
For example, Walzer correctly states that the concept of “proportionality” in just war theory is all over the place and is much more often used as an excuse for unacceptable violence than as a proscription on it. Score one for the Geneva architecture, which doesn’t use such a fuzzy concept at all. Under Protocol 1, Article 57, a commander has three duties (explained very clearly in “Constraints on the Waging of War: An Introduction to International Humanitarian Law” by Frits Kalshoven and Liesbeth Zegveld):
1) to do everything feasible to verify that the chosen target is a military objective
2) to take all feasible precautions in the choices of means and methods to avoid, or in any event minimise harm to civilians and damage to civilian objects
3) to refrain from carrying out an attack if may be reasonably be expected to cause such harm or damage in a quantity which would be excessive relative to the concrete and definite military advantage anticipated.
So, under international law, for example, “minimising civilian casualties” is a basic primary requirement – it’s something you always have to do, not something you get extra brownie points for and certainly not something you can trade off against a slightly dodgy choice of target. Furthermore, “minimised” casualties could still be “excessive” relative to the concrete and definite military advantage anticipated. And international law’s clear on other topics that appear to vex Walzer too about the kind of objective that can be set against the civilian casualties; it has to be “concrete” (no messing around with intangibles like “avoiding the rocketing of New York”), “definite” (as in, with a clear chain of causation to the enemy’s ability to wage war) and “military” (no bombing objectives in order to gain political advantage).
International law’s also very clear on the subject of “negative reciprocity” – the question of whether one side’s failure to play fair releases the other side from its obligations. The answer is it doesn’t, and specifically, that even if the other side breaches its obligation to protect its civilians, by using them to surround a military objective, you don’t get to ignore the existence of the human shields; the calculation of whether the harm to noncombatants is excessive relative to the CDM advantage has to be made on the basis of the actual harm anticipated, not some wishful-thinking assessment of what it ought to be.
There’s obvious harm done in the real world by the fact that the doyen of just war theory is blowing squid ink around the relevant international humanitarian law – it makes it much easier for all sorts of people to use bad arguments to provide political cover for illegal actions – and I would be very interested in knowing whether he’s doing it on purpose or out of a lack of knowledge. “Just and Unjust Wars” isn’t searchable on Google Books, but it is on Amazon “Look Inside”, and as far as I can tell from that search function, it does cites the Geneva Convention precisely twice (once in the preface and once on a point about uniforms not related to noncombatants). The Protocols aren’t mentioned at all (or at least, the word “protocol” is mentioned only once, in relation to another treaty).
I find that really quite freakish. Surely Walzer must have been aware that the Protocols were being negotiated, while he was writing his book? Is academic political philosophy really that disconnected from the real world? It really isn’t that difficult to get oneself involved in a debate of this sort, if one’s got any sort of professional standing and surely a professor of ethics would be able to. What am I missing here?
Potentially quite a lot, but potentially not much. I’m certainly aware that people in the field do tend to get quite confused between international humanitarian law and “just war theory” (I will spare his blushes, but at least one contributor to the journal Democratiya has responded angrily to me suggesting that he was “trying to rewrite the Geneva Conventions” by citing Walzer!). I personally tend to agree with this reviewer that just war theory has been an amazing washout when one compares its actual results to its own rhetoric, but when Walzer sternly admonishes:
Asking the hard questions and worrying about the right answers—these are the moral obligations of commentators and critics, who are supposed to enlighten us about the moral obligations of soldiers. There hasn’t been much enlightenment these last days.
then he really needs to pull the stick out of his ass. The Geneva Conventions were for the most part drawn up by lawyers and soldiers, and it really is unseemly for Walzer to go about patting himself on the back (and high-fiving his mates over “the triumph of just war theory”, odds bodkins) for being the only person morally serious enough to think about these ever so difficult questions, while reinventing the wheel, badly.