IS IT morally acceptable to shoot Osama bin Laden? Supposing the al-Qaeda leader could not be captured but could be targeted for killing by a commando unit, how would that accord with the principles of just war?
There was an interesting discussion on whether “the war on terror” required us to update the moral theology of war on Radio 4’s Sunday programme this week. On one side was Alan Dershowitz, the Harvard Professor of Law who stirred controversy after the 9/11 terrorist attacks on the United States. He had suggested that torture was ethically permissible in a “ticking-bomb” scenario where people would die if a suspect did not reveal vital information.
On the other was Nigel Biggar, Regius Professor of Moral and Pastoral Theology at Oxford, who is a canon of Christ Church and who has written in the past on how Christian notions of forgiveness and reconciliation can overcome violence.
You might have expected the two men would disagree, but they did not, at least so far as the discussion was allowed to proceed. Different times and different modes of warfare meant that the notion of just war must be redefined. A theory developed in an era when war was between two uniformed armies needed updating in conflicts where combatants do not belong to regular armies but blend deliberately into the civilian population and use the innocent as human shields.
Surprisingly perhaps, the theologian agreed that it was OK to kill the al-Qaeda leader because behind the traditional distinction between combatant and non-combatant lies a desire to limit damage to innocent civilians. On this, Professor Biggar said, “just-war theory is lot more supple than international law.”
I began to feel uneasy, and became more so when Professor Dershowitz talked of a “continuum of civilianality”, which says that terrorist leaders and bombers are the most guilty, but that those who harbour them are guilty, too, if less so; and so the dilution continued down to babies, whose death is always unjust.
This is a superficially attractive notion, but it leads, as in Israel, to justifications such as that it is OK for an army to bomb a house if it has told the occupants to leave, and they decline, for whatever reason, to do so. Professor Dershowitz adduces what he calls “dead-baby syndrome”, whereby insurgents put women and children in harm’s way in the hope that the enemy will kill them, thus creating a propaganda defeat for the more conventionally powerful side.
These are refined arguments from two clever professors, but something in me bridles at the idea of accepting the killing of babies on the grounds that the insurgents who deliberately put the innocents into the firing line bear greater responsibility than the army that fires the shells that kill the children.
Perhaps Professor Biggar would have got there, too, had he been allowed more time. But his insistence that “an infringement of law might not be an infringement of the principles of just war” seemed odd. Morality should set the bar higher, not lower, than the law.
“We have to rethink the rules, but it’s important we don’t throw away the constraints,” the theologian conceded. But the conditions set by Aquinas included not only that war must be a response to an injustice and a last resort, but also that it must be conducted with proportionality and the expectation of victory. It is hard to see how we might expect anything other than a Pyrrhic victory if it involves inflicting propaganda defeats with dead babies upon ourselves.
Democracies are at a tremendous disadvantage when it comes to terrorism, Professor Dershowitz suggests. Yet that is even truer if we throw away the values on which that democracy rests in an ends-justify-the-means determination to win.
Paul Vallely is associate editor of The Independent.