Preferring One's Own Civilians: Can Soldiers Endanger Enemy Civilians More Than They Would Endanger Their Own Civilians?

22 Pages Posted: 10 Aug 2009 Last revised: 17 Sep 2009

See all articles by Iddo Porat

Iddo Porat

College of Law and Business - Ramat Gan Law School

Date Written: August 7, 2009

Abstract

When soldiers engage in war they should be careful not to harm enemy civilians. However, the question remains how careful should they be and, in particular, to what degree should they be willing to risk their lives in order not to harm enemy civilians? In a recent article for the New York Review of Books Professor Michael Walzer and Professor Avisahi Margalit argue that soldiers should take upon themselves the same degree of risk in order not to harm enemy civilians as they would have taken if those civilians were their own civilians.

According to their example, if Hezbollah were to take over a Kibbutz in northern Israel and hold civilian hostages as human shields (for example by intermingling with them so that it would be impossible to hurt Hezbollah people without hurting the civilians) Israeli soldiers should risk themselves in order not to harm those civilians equally if: 1. The civilians used as human shields were Israeli Kibbutz members. 2. The civilians used as human shields were Swedish volunteers in the Kibbutz 3. The civilians used as human shields were residents of northern Lebanon which Hezbollah brought with them to Israel for use as human shields. I shall refer to this as the “equality” principle.

Walzer and Margalit further argue that the degree of risk that Israeli soldiers should take upon themselves in all of these instances is higher than the degree of risk that they would impose on the civilians. To this I shall refer as the “altruism” principle.

In this article I would like to question both the equality and the altruism principles, based on an argument from individual self defense.

The gist of the argument is the following: in situations in which an aggressor holds an innocent person as a human shield, the defender may kill the human shield in order to save his life, because the human shield is morally equivalent to an innocent aggressor. That is, his well being poses a risk to the defender’s life, although he is in no way responsible or culpable for that risk. In such situations, the defender has an agent-relative permission to prefer his own life over the life of the human shield (hence the rejection of the altruism principle). However, if the human shield is someone close to the defender, such as his son, or his lover (or possibly his countryman) he may justifiably choose to risk his life more than the minimal moral requirement that would apply to any other human shield; that is he may choose to risk his life more than what he would be required to if the human shield were a stranger (hence the rejection of the equality principle).

Keywords: Self Defense, Excuse, Justification, Human Shield, Just War, Laws of War, Ethics, Doctrine of Double Effect

JEL Classification: K14

Suggested Citation

Porat, Iddo, Preferring One's Own Civilians: Can Soldiers Endanger Enemy Civilians More Than They Would Endanger Their Own Civilians? (August 7, 2009). U San Diego School of Law, Public Law and Legal Theory Research Paper Series. Available at SSRN: https://ssrn.com/abstract=1445509 or http://dx.doi.org/10.2139/ssrn.1445509

Iddo Porat (Contact Author)

College of Law and Business - Ramat Gan Law School ( email )

26 Ben-Gurion St.
Ramat Gan, 52275
Israel

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