Alan Dershowitz on degrees of 'civilianality'

(Welcome instapundit readers! The original post mentioned by instapundit had a bad link (my fault) - it can be found here, on proportionality and jus ad bellum.)

Alan Dershowitz writes in the Los Angeles Times here on the need to establish degrees of being a civilian in war and terrorism, with differing degrees implying different degrees of either participation and/or culpability, and hence different degrees of protection. I reserve judgment on this proposal and am still thinking about it.

The idea of revising the combatant/noncombatant line is not in fact so new and has many permutations. As the concept of "total war," the mobilization of the whole nation-state, grew in the 20th century, for example, many proposed that the traditional distinction between combatant and non-combatant - taking (or not taking) active part in hostilities - no longer meant very much and hence everything and everyone was a target. That is not what Dershowitz is proposing - far from it, he is aiming to refine the distinction between participant and non-participant to make it more than just an on/off switch. The total war concept essentially said the switch was 'on' for everyone, all the time.

There were also many discussions about particular categories of civilian workers - such as those who worked in munitions factories - could they be targetted as such. In the end, the uneasy resolution of that debate, for most anyway, was that they could not be targetted as such, but the plants where they worked could be targetted as legitimate objectives, which often amounted to the same thing.

I doubt very much - as Dershowitz doubts - that in the positive law could come to grips with what he calls the "retail" distinctions of guilt and innocence of the criminal law, or the retial distinctions that would be necessary to define degrees of combatancy. There is some movement that direction in Protocol I, for example, and how some have interpreted it - you might be a part time combatant, for example, working your fields as a peasant by day and going out to fight by night, or one week a month - the ICRC and others take the view that under Protocol I, you are only liable to attack as a combatant when you are actually fighting - I find the concept very strange, especially the suggestion made to me by one human rights lawyer recently that the US Predator strike in Yemen against a vehicle full of al Qaeda operatives was illegal because they were not at that moment involved in actual combat.

On the other hand, the failure of, for example, the media in Lebanon to take account of the fact that the rocket launchers are deliberately sited in civilian zones, in sympathizers' homes, and that perhaps that had something to do with the fact that the five year old was killed is an enormous problem. The general sense of the media and commentators that the obligations to protect civilians lie entirely on the attackers, as I discuss in an earlier post, is as problematic in the current conflict as it was in the Iraq war.

I have suggested, in any case, a somewhat analogous move concerning the interrogation of detainees. My view is that how harshly you can interrogate a detainee is partly a function of what you know or don't know about him. If you know that you are interrogating Zarqawi, in my view you are permitted more severity than interrogating someone about whom you have no reason to think he is not merely the hapless shepherd. That seems to me common sense, mostly. It, too, is a concept of degrees - although I stress, only analogous to what Dershowitz is proposing, not directly the same moral argument.

Also, I should emphasize that in full blown version of Dershowitz' argument would have to address as quite separate issues degrees of lawful participation in war, and degrees of innocence and guilt in participation in terrorism or war crimes. Both share the idea of degrees, but they are two quite different moral and legal situations. Dershowitz runs them together somewhat in this article and others.

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'Civilian Casualty'? It Depends
Those who supports terrorists are not entirely innocent.

By Alan Dershowitz

ALAN DERSHOWITZ is a professor of law at Harvard. He is the author, most recently, of "Preemption: A Knife that Cuts Both Ways."

Los Angeles Times
Saturday, July 22, 2006

THE NEWS IS filled these days with reports of civilian casualties, comparative civilian body counts and criticism of Israel, along with Hezbollah, for causing the deaths, injuries and "collective punishment" of civilians. But just who is a "civilian" in the age of terrorism, when militants don't wear uniforms, don't belong to regular armies and easily blend into civilian populations?

We need a new vocabulary to reflect the realities of modern warfare. A new phrase should be introduced into the reporting and analysis of current events in the Middle East: "the continuum of civilianality." Though cumbersome, this concept aptly captures the reality and nuance of warfare today and provides a more fair way to describe those who are killed, wounded and punished.

There is a vast difference — both moral and legal — between a 2-year-old who is killed by an enemy rocket and a 30-year-old civilian who has allowed his house to be used to store Katyusha rockets. Both are technically civilians, but the former is far more innocent than the latter. There is also a difference between a civilian who merely favors or even votes for a terrorist group and one who provides financial or other material support for terrorism.

Finally, there is a difference between civilians who are held hostage against their will by terrorists who use them as involuntary human shields, and civilians who voluntarily place themselves in harm's way in order to protect terrorists from enemy fire. These differences and others are conflated within the increasingly meaningless word "civilian" — a word that carried great significance when uniformed armies fought other uniformed armies on battlefields far from civilian population centers. Today this same word equates the truly innocent with guilty accessories to terrorism.

The domestic law of crime, in virtually every nation, reflects this continuum of culpability. For example, in the infamous Fall River rape case (fictionalized in the film "The Accused"), there were several categories of morally and legally complicit individuals: those who actually raped the woman; those who held her down; those who blocked her escape route; those who cheered and encouraged the rapists; and those who could have called the police but did not.

No rational person would suggest that any of these people were entirely free of moral guilt, although reasonable people might disagree about the legal guilt of those in the last two categories. Their accountability for rape is surely a matter of degree, as is the accountability for terrorism of those who work with the terrorists.

It will, of course, be difficult for international law — and for the media — to draw the lines of subtle distinction routinely drawn by domestic criminal law. This is because domestic law operates on a retail basis — one person and one case at a time. International law and media reporting about terrorism tend to operate on more of a wholesale basis — with body counts, civilian neighborhoods and claims of collective punishment.

But the recognition that "civilianality" is often a matter of degree, rather than a bright line, should still inform the assessment of casualty figures in wars involving terrorists, paramilitary groups and others who fight without uniforms — or help those who fight without uniforms.

Turning specifically to the current fighting between Israel and Hezbollah and Hamas, the line between Israeli soldiers and civilians is relatively clear. Hezbollah missiles and Hamas rockets target and hit Israeli restaurants, apartment buildings and schools. They are loaded with anti-personnel ball-bearings designed specifically to maximize civilian casualties.

Hezbollah and Hamas militants, on the other hand, are difficult to distinguish from those "civilians" who recruit, finance, harbor and facilitate their terrorism. Nor can women and children always be counted as civilians, as some organizations do. Terrorists increasingly use women and teenagers to play important roles in their attacks.

The Israeli army has given well-publicized notice to civilians to leave those areas of southern Lebanon that have been turned into war zones. Those who voluntarily remain behind have become complicit. Some — those who cannot leave on their own — should be counted among the innocent victims.

If the media were to adopt this "continuum," it would be informative to learn how many of the "civilian casualties" fall closer to the line of complicity and how many fall closer to the line of innocence.

Every civilian death is a tragedy, but some are more tragic than others.