Bainbridge’s “Just War for the Sake of Argument”

My practical orientation isn’t much for philosophical musings. But, I like others can’t and shouldn’t avoid searching for broad guidance from first principles. They may not dictate THE answer. However, it helps to raise some of the needed questions.

In that spirit, law professor Steve Bainbridge wrote for Tech Central Station an inquiry into Catholic Just War doctrine relative to the current war against and by Israel, as he titles his piece “Just War for the Sake of Argument.”

Being Catholic, Bainbridge feels obligated to examine “pronouncements in this area under the just war standard.” Being Jewish, I feel obligated to examine “on-the-one-hand and on-the-other” argumentation in coming to a practical point, and being fact-oriented to consider the evidence.

Bainbridge concedes that Catholic Just War doctrine’s first three requirements are met by Israel in fighting back, but is fearful that Israel may be approaching breaking the fourth Just War principle for proportionality.

I'll assume that the conditions set forth by just war doctrine for initiating combat are satisfied.
Even so, Israel also remains bound by the fourth condition -- namely, the need for proportionality….
In short, even a just war must be waged justly. Israel is entitled to defend itself, but is not entitled to do so disproportionately or to wage war on civilians. Yet, that is precisely what Israel appears to be on the brink of doing.

Bainbridge emailed me, when I questioned his logic (I didn’t get into facts for judgment):

Deliberate targeting of civilian infrastructure strikes me as problematic. Worse yet, the “collateral damage” cost in human life is spiraling upward.

Several of Bainbridge’s readers offer telling comments. One says it’s :

Time to update the theory then: It now looks like Lebanon came pre-optimized to test the bounds of the theory. It has an army of irregulars, funded and well supplied by foreign nations, making incursions into a neighboring nation and lobbing explosives at civilians inside that nation. The irregulars' supply lines just happens to be the main highway to another nation, a.k.a. national infrastructure. The irregulars have a political party, with representation in the parliament and in the cabinet. The irregulars hide themselves, their weapons, and the political apparatus within the population.

The theory may not be incorrect, proportionality being Western decency. Bainbridge’s application of it may be incorrect in the absence of military understanding, a common fault of intellectuals and those without military experience or knowledge.

Another Bainbridge reader, at Bainbridge’s blog, replies to a point made by Bainbridge (in italics below):

A country with a poor economy and poor infrastructure is a breeding ground for terrorists.
Unlike, say, Saudi Arabia, Spain, or Britain, which could never generate terrorists.
Take a look at Alan B. Krueger and Jitka Maleckova, Education, Poverty, Political Violence and Terrorism: Is There a Causal Connection?
http://www.nber.org/papers/w9074
"we analyze data on support for attacks against Israeli targets from public opinion polls conducted in the West Bank and Gaza Strip. These polls indicate that support for violent attacks does not decrease among those with higher education and higher living standards. The core contribution of the paper is a statistical analysis of the determinants of participation in Hezbollah militant activities in Lebanon. The evidence we have assembled suggests that having a living standard above the poverty line or a secondary school or higher education is positively associated with participation in Hezbollah."

Again. The data doesn’t support Bainbridge’s application of the Catholic Just War doctrine or theory of justice in war.

Another reader of Bainbridge’s blog comments:

I'm an agnostic so I never analyze anything on the basis of religious dogma. That out of the way, let me say that you raised some points with respect to proportionality that deserve careful consideration.
The first has to do with collateral damage. As you rightly noted, "Bomber" Harris' area bombing campaign was even viewed in its day as being ethically dubious. In contrast, the U.S. daylight "precision" bombing campaign was viewed, for better or worse, differently because there was an attempt to go after purely military targets. Never mind that many, if not most, bombs fell astray. This suggests that intent - the intent to avoid unnecessary civilian casualties - be a factor in determining if a military action is being conducted in a proper way.
A second consideration is, what constitutes a "military target"? The ball bearing works at Schweinfurt employed civilians - German military personnel didn't work in factories. Yet, those ball bearings were essential to the German war machine which was being supported directly by those civilian workers. In fact, those workers undoubtedly knew they were working directly for the military so it cannot be said that they were perfectly "innocent". Likewise, it is fair to say that some number of "civilians" who have been killed in Israeli attacks are actively working for and supporting Hezbollah fighters. They are not "innocent" either.
A third consideration is one I addressed in an essay I posted on 7 March 2005 titled Preemptive war against Iran. The issue I addressed is the human cost to the potential aggressor if he is allowed to carry out his attack. Using the same analytical basis, the argument is that taking out Hezbollah now, even at the cost of some innocent lives, will actually save many more innocent lives in the future. Were a future proxy attack on Israel to consist of VX Nerve Gas, thousands or even tens of thousands of Israeli civilians would be killed. It is quite likely that the Israelis would respond with a "limited" nuclear attack on Iran in tit-for-tat fashion that would cause thousands of civilian casualties in that country.
I agree with you that, unlike our enemies, we must conduct war as ethically as possible. I trust that we also agree ethnics does not require that we render ourselves impotent and defenseless.

Again, not only the facts but also the wider issues of proportionality, undermine the unsubstantiated theoretical positing of Catholic Just War doctrine.

Bainbridge concedes Israel’s just cause. Israel Prime Minister Olmert gets to the practical point:

Radical, terrorist and violent elements are sabotaging the
life of the entire region and placing its stability at risk.
The region in which we live is threatened by these murderous
terror groups.
It is a regional - as well as global - interest to take
control and terminate their activity….
Citizens of Israel, there are moments in the life of a nation, when it is
compelled to look directly into the face of reality and say:
no more!
And I say to everyone: no more!
Israel will not be held hostage - not by terror gangs or by
a terrorist authority or by any sovereign state.
In the life of a nation there are moments of transcendence,
of purification, when political and sectarian disputes which
separate us are replaced by a sense of mutual
responsibility.

Bainbridge should also concede that the facts of Israeli actions in that cause are just and correct and proportionate. Indeed, as some have commented, only disproportionate in their past and present restraint not excess.

The editor of the Arab Times weighs in:

PEOPLE of Arab countries, especially the Lebanese and Palestinians, have been held hostage for a long time in the name of "resisting Israel." Arab governments have been caught between political obligations and public opinion leading to more corruption in politics and economics. Forgetting the interests of their own countries the Hamas Movement and Hezbollah have gone to the extent of representing the interests of Iran and Syrian in their countries. These organizations have become the representatives of Syria and Iran without worrying about the consequences of their action….
While the people of Palestine and Lebanon are paying the price of this bloody conflict, the main players, who caused this conflict, are living in peace and asking for more oil from Arab countries to support the facade of resisting Israel. With the Palestinian Authority close to collapse and the Lebanese government beginning to give up responsibility for what is happening in its territory, Saudi Arabia has been forced to come out of its diplomatic routine and indirectly hold Hezbollah responsible for what is happening Lebanon.

Without mentioning Hezbollah by name Saudi Arabia blamed certain "elements" inside Lebanon for the violence with Israel and said "it is necessary to make a distinction between legitimate resistance and uncalculated adventures adopted by certain elements within Lebanon without the knowledge of legal Lebanese authorities."…
Unfortunately we must admit that in such a war the only way to get rid of "these irregular phenomena" is what Israel is doing. The operations of Israel in Gaza and Lebanon are in the interest of people of Arab countries and the international community.

These last two comments don’t get directly at the specific tactics, of specific “proportionality,” per se, but do pretty well properly frame the issue of proportionality in its broader regional and future context as reasonable acts of war.

Neither Bainbridge’s worry about specific proportionality is merited by the specific facts or by the general situation and stakes.

Bainbridge has not yet replied at TCS or his blog to the commenters, so I sent him the above and invited him to here:

If you're right, then why not just adopt what those of us who grew up in the Army back during Vietnam used to hear called the Westmoreland solution: Put all the friendlies in boats out in the South China Sea. Nuke Vietnam into a parking lot. Sink the boats.

Either you believe a just war ought to be fought ethically or not. Hezbollah doesn't. Do you really want to descend to their ethical level? Because that's basically what you're doing.

Sadly, Bainbridge’s childhood recollections of Vietnam, and his accusation toward me, are both in error and not in the spirit of civil discussion or fact-based analysis of just war theory.

Bainbridge may dismiss as irrelevant the disproportionality of Hezbollah or Hamas. But, this from today’s New York Times presents the continuing strategy of these to purposely target Israeli civilians, not just as “collateral damage” that may occur by Israel from those killed or injured around Hamas or Hezbollah military targets, and the practical proportionate defensive result.

Some 30 rockets fired by Hezbollah hit Haifa and other parts of northern Israel. One rocket leveled much of an apartment house, critically wounding one person. Another Hezbollah rocket landed next to a hospital in Safed, slightly wounding six people….
Brig. Gen. Ido Nehushtan, on the Israeli general staff, said, “We have damaged Hezbollah but they still have significant operational capacity.” He noted the decline in rockets launched into Israel in the last two days — an average of 40 a day, down from initial highs of 150 — and said it was a testament to the damage caused by the Israelis.

Since Steve Bainbrodge declines to engage in factual or civil discussion of his musings, I’ll return to the theoretical framework, his own launch point, with this from a student of international law:

Hugo Grotius, the 17th century jurist and father of public international law, stated in his 1625 magnum opus The Rights of War and Peace that "Most Men assign three just Causes of War, Defense, the Recovery of what's our own, and Punishment." Using Grotius' criteria, Israel's recent use of force against Hamas and Hezbollah can be considered trebly justified, given that it seeks to defend itself from enemy incursions, recover its kidnapped citizens, and ensure that such invasions are not repeated.

ALSO, don't miss "Admirable Restraint" at Tech Central Station.