Previous articleNext article FreeGuns, Food, and Liability to Attack in War*Cécile FabreCécile FabrePDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreI. IntroductionThe principle of noncombatant immunity, whereby noncombatants ought not to be targeted in the course of a war, is a cornerstone of jus in bello. Although noncombatants are often thought to encompass all civilians, the latter (as has often been noted) often participate in the war: as citizens, they sometimes vote for warmongering political leaders; as taxpayers, they provide the funds which finance the war; as journalists, they can help sway public opinion in favor of the war; as political leaders, they take the country into war. Last, but not least, as workers, they provide the army with the material resources without which it could not fight, such as weapons, transports, construction units, but also food, shelter, protective clothing, and medical care.This article addresses the latter contributions—an issue which has become more salient in the last few years as professional armies increasingly rely on civilian private contractors for help of the aforementioned kinds: current conflicts in Iraq and Afghanistan are but two examples of the growing intermeshing of army and civilian personnel in war zones.1 Interestingly, there is a remarkable degree of consensus, in war ethics, on the liabilities of civilians who make a material contribution to the war. Civilians who provide combatants with military resources such as guns (civiliansm) are widely deemed liable to attack, whereas civilians who provide them with welfare resources such as food and medical care (civiliansw) are widely deemed to be immune from it.2 That claim—which I shall call the functionalist view—has a long pedigree in just war theory. Thus, medieval theologians and canon lawyers routinely claim that peasants are immune from being killed, even if they supply food to armies. Likewise, Grotius avers that those who provide nonmilitary resources to combatants must be spared by the enemy.3In this article, I shall reject the claim that civiliansm directly participate in the war whereas civiliansw do not. On the contrary, civiliansw can sometimes be regarded as direct participants in war (Sec. II). However, it does not follow that they are liable to attack. For as I shall then claim, whether a civilian is liable to attack depends on the extent to which he is causally and morally responsible for wrongful enemy deaths. As we shall see, many civilians who materially assist in the commission of unjust war killings do not display the requisite degree of responsibility and thus are not liable to attack, irrespective of the nature—military or welfarist—of their contribution (Secs. III–V).4Before I begin, some preliminary remarks are in order. First, by the claim "A is liable to being killed/attacked by B," I mean that A has lost his right not to be killed by B, so that B would not wrong him were he to attack him. There might be cases, however, in which someone who has not lost his right not to be killed may nevertheless be targeted by the enemy. My aim is not to show, widely, that civilians who provide welfare or military assistance to combatants generally may not be killed; more narrowly, it is to suggest that they are not (on the whole) liable to being killed, even if they provide assistance to unjust combatants. Note that I shall sometimes say that they are immune from attack. In a wide sense, to say that someone is immune from attack means that others ought not to attack him. In a narrow sense, it means that he is not liable to being attacked (i.e., that he has not lost his right not to be attacked), which is compatible with the view that there might be countervailing reasons, for example, of the lesser evil kind, for attacking him (in which case we will say that his right has been permissibly infringed). Throughout this article, I will use 'immune' in the narrow sense.5Second, I take it as fixed that there is a presumptive case in favor of not intentionally targeting civilians who do not take part in the war. The principle of noncombatant immunity itself is not in question here. What is in question is the location of the cut between the civilians whom it protects and those who are legitimate targets. In addition, it is assumed throughout that the war killings at issue respect the requirements of proportionality (so that the harm which those acts inflict is outweighed by the good which they bring about) and of necessity (so that those acts are required by their authors' [just] war aims and are not, e.g., punitive).Third, I focus on civilians who provide combatants with military and welfare assistance by working in organized economic structures specifically directed to combatants alone. I do not address the case of civilians who are called on to help the army at war by, for example, sending them warm clothes or making donations in charity shops. Nor do I address the issue of the extent to which, if at all, taxpayers are liable for financing, albeit perhaps unwillingly, an unjust war. Nor, finally, do I tackle the normative difficulties raised by dual‐use material contributions—contributions, in other words, which help both combatants and noncombatants. My reasons for not embarking on those tasks are twofold. First, the standard view on material assistance (whereby providing military assistance is a basis for liability, whereas providing welfare resources is not) is well entrenched and worth examining in its own right. Second, the considerations which I deploy in Section V to show that most civiliansm and civiliansw are immune from attack (to wit, the extremely marginal nature of their individual contributions together with their typically very low degree of moral responsibility for them) apply, a fortiori, to the aforementioned three cases of civilian contribution to the war effort.Finally, it is important to bear in mind that the account of civilian immunity which I defend here belongs to what McMahan has called the deep morality of war, whose principles are very different from, and inapplicable to, the laws of war, even when the latter are morally justified. The claim that there is such a thing as the deep morality of war is not uncontroversial: in fact, it has come under sustained attack from a number of commentators.6 Yet, the relationship it posits between the deep morality of war and (morally justified) laws of war is similar to that between practically unfeasible first‐best principles of distributive justice, such as, for example, Rawls's difference principle and Dworkin's resource egalitarianism, and second‐best distributive principles which we have moral or morally directed pragmatic reasons to adopt when designing a taxation regime. If one accepts that it is appropriate to conceive of the fundamental requirements of distributive justice as independent from constraints such as epistemic feasibility, then it is appropriate to conceive of the fundamental principles of a just war as being similarly unconstrained. To be sure, that view of distributive justice is controversial as well.7 I take it, however, that whether justice, as pertaining either to the distribution of resources or to war, is so constrained is a matter for reasonable disagreement. As my account of civilian immunity leans on the side of 'unconstrained justice', it runs the risk of alienating those who expect a theory of the just war to be directly related to the world as it is or directly action guiding. Still, this article does contain a useful lesson even for less abstract, more pragmatically oriented theories of the just war, to wit, that functionalist distinctions between military and nonmilitary contributions are far less plausible a basis for protecting some categories of civilians than is widely thought to be the case.1. The range of services which civilian contractors currently provide to professional armies is described in, e.g., Jeremy Scahill, Blackwater: The Rise of the World's Most Powerful Mercenary Army (London: Profile, 2007); Deborah D. Avant, The Market for Force—the Consequences of Privatizing Security (Cambridge: Cambridge University Press, 2005); and Peter W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry (Ithaca, NY: Cornell University Press, 2003), esp. chap. 1.2. My use of the phrase 'welfare resources' to denote food, shelter, clothing, antidehydration tablets, medical care, and so on, might seem odd. I borrow it from the literature on distributive justice, which sometimes calls rights to such resources 'welfare rights'.3. For the medieval view, see Maurice Keen, The Laws of War in the Late Middle Ages (London: Routledge & Kegan Paul, 1965), chap. 11. For Hugo Grotius's view, see his The Right of War and Peace, ed. Richard Tuck (Indianapolis: Liberty Fund, 2005), bk. 3, chaps. 1 and 11. See also Thomas Nagel, "War and Massacre," Philosophy & Public Affairs 1 (1972): 123–44, 139–40; Michael Walzer, Just and Unjust Wars, 4th ed. (New York: Basic, 2006), 146; C. A. J. Coady, Morality and Political Violence (Cambridge: Cambridge University Press, 2008), 111–14.4. As we shall see at the close of Sec. III, civilians who contribute to just war killings are not liable to attack, irrespective of the nature (military or welfarist) of their contribution.5. For the view that one may sometimes infringe someone else's rights, see, e.g., Judith Jarvis Thomson, The Realm of Rights (Cambridge, MA: Harvard University Press, 1990), and Rights, Restitutions and Risks (Cambridge, MA: Harvard University Press, 1986).6. See, e.g., Henry Shue, "Do We Need a 'Morality of War'?" and Adam Roberts, "The Principle of Equal Application of the Laws of War," in Just and Unjust Warriors, ed. David Rodin and Henry Shue (Oxford: Oxford University Press, 2008), 87–111, 226–54.7. As evidenced by recent debates between one of its best known proponents, i.e., G. A. Cohen, and his critics. See G. A. Cohen, Rescuing Justice and Equality (Cambridge, MA: Harvard University Press, 2008); and, e.g., David Miller, "Political Philosophy for Earthlings," in Political Theory: Methods and Approaches, ed. David Leopold and Marc Stears (Oxford: Oxford University Press, 2008), 29–48; Andrew Williams, "Incentive, Inequality and Publicity," Philosophy & Public Affairs 27 (1998): 225–47. For an interesting discussion of how best to approximate, in practice, the aforementioned principles of distributive justice, see Will Kymlicka, Contemporary Political Philosophy, 2nd ed. (Oxford: Oxford University Press, 2002), 88–96.II. Rejecting the Functionalist ViewAccording to the functionalist view, civiliansm are liable, while civiliansw are immune, on the grounds that the former's contribution (weapons), unlike the latter's (food, medical care, shelter, etc.), is of a kind such as to count as direct participation in the (unjust) war. The functionalist view has been advanced by Walzer as follows:The relevant distinction is not between those who work for the war effort and those who do not, but between those who make what combatants need to fight and those who make what they need to live, like all the rest of us. When it is militarily necessary, workers in a tank factory can be attacked and killed, but not workers in a food processing plant. … An army, to be sure, has an enormous belly, and it must be fed if it is to fight. But it is not its belly but its arms that make it an army. … Those men and women who supply its belly are doing nothing peculiarly warlike. Hence their immunity from attack: they are assimilated to the rest of the civilian population.8The notion of direct participation is central to the functionalist view. It is also at the heart of some of the most important clauses of the laws of war. According to the First Protocol Additional (PA) to the Geneva Conventions (GC), combatants are members of the armed forces, except for chaplains and medical personnel (PA I, art. 43.2).9 As for civilians, they are not legitimate targets, "unless and for such time as they take a direct part in hostilities" (PA I, art. 51.3; PA II, art. 13). More specifically, the following individuals ought not to be regarded as noncombatants (GC III, art. 4.A.4), which implies that they are liable to attack: "Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany." According to the Conventions, thus, civilians' geographical proximity to the war is decisive for assessing whether they are direct participants, irrespective of the nature of their contribution. However, a series of reports on direct participation commissioned by the International Committee of the Red Cross (ICRC) takes a rather different view. Although the reports focus on the laws of war, they are a useful starting point for understanding why munitions factory workers are regarded as direct participants by the functionalist view. A fortiori, that framework also applies to civilian contractors who maintain the army's weaponry on the battlefield, provide military logistical support in combat, and so on. As we shall see, to the extent that the functionalist view implicitly relies on that plausible account of direct participation (as I believe it does), then it cannot distinguish as it does between military and welfare needs.10According to the ICRC reports, then, an account of direct participation by civilians in hostilities (where hostilities are defined as acts of war) must deal with the following two issues: that to which civilians specifically contribute, termed by the reports as the 'nexus', and the causal relationship between their contributions and the harm suffered by the enemy.11 With respect to the nexus, the ICRC reports stipulate that a civilian directly participates in hostilities if, and only if, his acts contribute to an armed conflict: thus, "stealing a rifle in order to go hunting and stealing it in order to use [it] in hostilities" are two very different acts, only the second of which could conceivably count as direct participation.12 By that token, a civilian is a direct participant only when he is actively making a contribution to the war and not, for example, in between work shifts.Direct participation also requires that there should be some significant connection between the civilian's act and the harm suffered by the enemy. The ICRC reports focus on three different interpretations of the notion of significant contribution, none of which is satisfactory. On the geographical‐proximity interpretation (which is at play in GC III, art. 4.A.4), a soldier who directs a long‐range missile from the safety of his Pentagon office thousands of miles away from the battlefield does not count as a direct participant, which is absurd.13 On the so‐called direct‐causation approach, the agent must harm (or try to harm) the enemy, as opposed to facilitate the harm, in order to be regarded as a direct participant. By that token, the intelligence analyst whose findings point shooters toward enemy sites is not a direct participant, although the shooters themselves are: that, however, seems unduly narrow.14 On the "but‐for" approach to causation, by contrast, a direct participant is anyone whose contribution to the war effort is one without which the enemy would not be harmed. That account is unduly broad, for the familiar reason that it would regard as a legitimate target anyone whose contribution to the war is a necessary condition for the harm done to the enemy, from the lecturer whose teachings in theoretical physics inspire her students to join the military industry, to the soldier's children whose unconditional love sustains him in battle and makes him a more effective combatant. At the same time, it is unduly narrow, as it cannot regard as direct participants agents whose contribution is not, strictly speaking, necessary to the infliction of harm on the enemy but is yet significant. Nor can it regard as direct participants agents who make a negligible contribution to the harm inflicted on the enemy but who nevertheless intuitively ought to be regarded as taking part in the war.The latter problem is particularly acute in the cases at hand, involving as they do a multiplicity of small contributions to lethal threats. The connection between one combatant's act of and his is one of direct by contrast, the connection between that and the acts of the many individuals who to making his is both very and What we thus, is an of the of civilians' acts which makes of the that some civilians contribute to even if their individual contributions are the case of individuals who together make a the of are for the of the into the relevant the the the of the yet the of the yet that the is the of the of their contributions is small and, on its not particularly significant. Yet, of those contributions with all others into the making of the those contributions to a significant contribution to the combatant's to the contribution of is necessary to the of the is whether workers either to make a or to contribute to the war is as What is that those workers make which is to combatants to fight and which is at that point in time, so that they can believe that this account of direct participation in one participates if are directed to the war the which is at the heart of the functionalist view with respect to factory of their contributions is very to the extent that they all to do their part toward the of a a tank or together guns which will then be to the they make a significant contribution to the war. A fortiori, civilian contractors who deploy to the are also direct it is those civilians participate in the war in the that they are liable to to the functionalist view, civiliansw are not legitimate they are not direct participants in the war. Yet, if my account of civilians' military contributions to the war is the functionalist distinction is not For in many cases, civiliansw provide combatants with what they need to fight. their individual contributions are very small to some of the working on a etc.), they are directed to the of the war and, when are will to the that unlike cannot be regarded as to the best described as the resources which combatants to fight and, in so help the war. is might one with a not with food or might guns does count as direct participation it direct whereas does not it the of a But that claim is For although it is that, strictly speaking, it is the guns as by combatants which not their or it is that combatants are not to if or make it for them to their arms and those guns on the enemy. material need for food, shelter, appropriate clothing, and medical care a long toward them to in war, even if the resources in question do not in themselves a be sure, the account of direct participation does not to from that last that those who provide those resources are to be regarded as direct someone to fight does not mean that we take part in the war. contribution must also be directed to the war. so at this of the functionalist view are to that even if them to fight, there nevertheless is an important difference between providing them with such as a which one would not them were it not for the that there is a war, and providing them with such as food, which they need the functionalist view so however, those considerations do not support the that civilian munitions workers but that or food are not, direct food, shelter, and medical whether they in or not. But as of War I could the resources which we all need is a to the and of the armed forces (as in the of the and it is with a view to that those resources are typic
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