James Traub, policy director of the Global Centre for the Responsibility to Protect (“R2P”, for those without enough acronyms in their lives), has an interesting Op-Ed about Sri Lanka in yesterday’s Washington Post. In summary:
- The LTTE are super bad dudes who invented suicide bombing, killed Indian Prime Minister Rajiv Gandhi, and are currently holding thousands of civilians hostage in a desperate attempt to withstand the Sri Lankan government’s military assault against them.
- The Sri Lankan government is attempting to crush said bad dudes militarily, once and for all.
- This is endangering the lives of the civilians being held hostage. The government’s tactics (indiscriminate artillery fire, extrajudicial killings, arbitrary detentions) are also totes uncool. They’re getting away with bad behavior by claiming that the LTTE are terrorists, and cloaking themselves in the mantle of the Global War on Terror. (Silly Sri Lankans! Only the US gets to do that.)
- Therefore, the “responsibility to protect” gives the Sri Lankan government a duty to retreat from the battle, even if the LTTE does not release the civilians it’s currently holding prisoner, and even if that means that the LTTE survives within Sri Lankan territory.
In other words, Traub believes that the responsibility to protect comes with a minimum competency requirement: if a state cannot achieve its military goals without going beyond a certain acceptable level of civilian casualties, then it should not be allowed to try.
That’s not a new theory: the principle of proportionality has long been a part of just war theory, (that would be “just” as in “justice”, not “just” as in “only”), and the jus in bello principles that govern how wars may be fought. Article 51(5) of the First Additional Protocol to the Geneva Conventions prohibits indiscriminate attacks on civilians, including those which may be expected to cause harm to civilians or their property “which would be excessive in relation to the concrete and direct military advantage anticipated.” The same principle was enshrined in Art 8(2)(b)(iv) of the Rome Statute of the ICC, which extends the same protection to the environment as well as civilians, but requires that the harm be “greatly” excessive instead of just plain-vanilla excessive.
When you think about it, that “anticipated” is kind of amazing, because it refers to the likely outcome, rather than the goal. In other words, this rule weighs the likelihood of military success against the harm to civilians, not the importance of the military objective. It’s always good to base calculations in the real world, but that presumably means that there is a sliding scale: the less competent an army is, the less likely they are to achieve their goals; and so the fewer civilian casualties they can risk.
I’m all about avoiding civilian casualties, and think that doing so is militarily savvy as well as morally correct. But wars are messy, dangerous things, and there is always some risk to civilian lives and property. Does that mean that once an army falls below a certain level of competence, they’re not permitted to take any action at all? (Seriously, not being tendentious here. Wondering if that is the logical extension of that rule.)
Traub acknowledges that the LTTE might not release the civilians, even if the government agrees to a cease-fire, but insists that the army must cease hostilities anyway. Does he really mean that? Getting rid of violent insurgencies in one’s own territory is a pretty valid reason to use military force, so why is all army action is unacceptable? Is it because there’s no way it end the LTTE insurgency without a disproportionate impact on civilian lives and property? Or is Traub advocating for a sort of three-indiscriminate-airstrikes-and-you’re-out policy, so that the army’s past violations of the proportionality rule disqualify it from any further military action?
It seems to me that the logical next step would be to demand that the army cease its current unacceptable tactics, not that it cease all military action. Traub, however, steams straight past it into demands that the army stop fighting, and calls for Security Council action. Is that because he thinks there’s no hope of changed tactics?
(Or is he a victim of the Op-Ed form, in which there’s too little room to get into details, and apparently some sort of legally-required paragraph excoriating the U.S. for violating a treaty/rule of customary international law/U.N. Resolution/Pirate Code, and demanding expiation via Security Council?)
(If you want to learn more about proportionality, I recommend this and this)
(Hat tip: Enough’s Blog.)