Risk Taking and Force Protection
David J. Luban
Georgetown University Law Center
May 29, 2011
READING WALZER, Itzhak Benbaji, Naomi Sussman, eds., Forthcoming
Georgetown Public Law Research Paper No. 11-72
This paper addresses two questions about the morality of warfare: (1) how much risk must soldiers take to minimize unintended civilian casualties caused by their own actions (“collateral damage”), and (2) whether it is the same for the enemy's civilians as for one's own.
The questions take on special importance in warfare where one side is able to attack the other side from a safe distance, but at the cost of civilian lives, while safeguarding civilians may require soldiers to take precautions that expose them to greater risk. In a well-known article, Asa Kasher and Amos Yadlin argue that while soldiers must rank the protection of their own civilians above their own protection, they must rank their own protection above that of enemy civilians. Avishai Margalit and Michael Walzer responded that the only morally relevant distinction is between combatants and non-combatants, not the identity of the non-combatants. The present paper concludes that Margalit and Walzer are correct. Although soldiers may take extra risks on behalf of their own civilians, the minimally acceptable risk for enemy civilians is the same as the minimally acceptable risk for their own.
In response to the first question, the paper emphasizes two chief points. First is the equal worth of military and civilian lives, which implies a weak form of “risk egalitarianism”: even if morality often permits people to transfer risk from themselves to others, transferring large risks to others in order to spare oneself from smaller risks is morally wrong, because indirectly it treats oneself as more valuable than the other. Second, I explore the possibility that soldiers belong to a profession in which honor may require them to take risks for civilians. This is particularly true when the risks to civilians come from the soldiers’ own violence.
The second question is whether soldiers’ special obligation to protect their own people (not other people) creates a higher minimum standard of care for their own people (and not other people). I answer no, because the special obligation is to protect their people from enemy violence, while the dilemma is whether to protect civilians from the soldiers’ own violence. The responsibility to protect the innocent from violence of one’s own making is a universal, not a special, obligation. Thus, in both questions 1 and 2, the fact that soldiers themselves create the violence that endangers civilians plays a crucial role in the answers.
The concluding sections address two crucial loose ends. First is the question of whether soldiers might in fact be more valuable than civilians (including their own civilians) because they are not only human beings, but also “military assets.” The paper answers no, because this way of thinking involves illegitimate double counting of the soldier’s value, coupled with a refusal to double count the value of anyone else. Second is the related question of whether minimizing military casualties might turn out to be a military necessity because the civilian population is deeply casualty-averse, and the war effort requires their political support. Again the answer is no: otherwise, the less will to fight a country has, the less moral and legal obligation it has to fight well.
Number of Pages in PDF File: 48
Keywords: International law, military law, national security, criminal law, collateral damage
JEL Classification: H56, K33, K39Accepted Paper Series
Date posted: May 30, 2011
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