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« Response to Anderson: Empirical Evidence and Mental States | Main | Embracing Impossibility »

A Cautionary Note

I am joining this discussion late and with only a brief opportunity to read over the really quite fascinating materials on urbicide. I want to add a brief comment on one aspect of this, proportionality, that is raised by some of the discussion. I will have to do so from a fairly abstract position, without real engagement with the text, and for that I apologize in advance.

The concept of urbicide, as has been noted in the discussion, invokes genocide and lots of other 'cides'. Words with 'cide' in them evoke bad things, but it is worth noting that the ur-cide, homicide, at least as far as the law is concerned, is a statement of killing. It is not, by itself, a statement of a culpable act.  Homicide is the killing of a human being, it is not a legal judgment of murder, manslaughter, etc. In our ordinary usage, we have come to equate 'cides' with social categories of murder and culpability, but I suppose it is worth bearing in mind that homicide is not that.

The core moral judgment of urbicide, as I understand it on my quick and dirty reading of the text, is one that relies on a notion of community - political, cultural, social, a variety of categories that are violated by the violence undertaken, and with a specific understanding that the destruction of the physical artifacts of the city are the destruction of this community. And in that, the social theory draws on a long and deep tradition of the identity of civilization with urbanity. The idea that the 'thing' under attack is a community, with a corporate identity separate and separately valuable from simply the pooled individuals, seems to me right, although worrisome in a legal and moral sense, because it raises possibilities of community identity outweighing individual rights in war. Presumably this was one reason why Walzer's theory of morality in war treats the political community as simply the summed rights of the individual rights-bearers, rather than ascribing rights to the community as such.

Certain forms of warfare are about attacks upon the community as such. Ethnic cleansing, for example. If the idea is to clear a territory of its inhabitants precisely because the aim of warfare a cleansed territory, then urbicide and the destruction of the community's physical elements makes sense. I haven't read sufficiently into the materials to know if this is raised, but it fits the model of holy war in the Hebrew bible, and God's instructions to destroy everything - people, property, animals, everything. This is contrary to the ordinary motives for ancient war, in which taking possession of the physical goods, the animals and buildings, etc., killing or enslaving the men and taking the women as valuable commodities, is all hugely important - destroy the booty? But the point of holy war in those chapters of the Bible is cleansing, to avoid pollution or contamination of one community and its way of life with another.

But most of warfare is not about attacks in that way - most of it involves something short of ethnic cleansing, important as that has been in the wars of the former Yugoslavia, Chechnya, Georgia, etc. So questions of intent, motive, and inference become important in order to establish, whether for purposes of social theory or for purposes of law, what was under attack as such and what was 'merely' collateral.  One question is whether, how, and to what extent 'intent' can be inferred from effect. The laws of war distinguish, roughly as the criminal law does, between situations of negligence and gross negligence in this area; gross negligence is not merely a lot of negligence, but instead negligence so reckless, uncaring of effects, and without calculation or a process for calculation, that it is treated as a separate category of bad intent. The specific war crime is one that shows up in Nuremberg - and where the court refused to convict - and shows up again in various judgments of the ICTY - wanton and disproportionate devastation not justified by military necessity.

This category of wanton and disproportionate devastation must be carefully distinguished, however, from even 'ordinary' negligence in the collateral damage context, viz., collateral damage that someone might conclude was 'excessive' in relation to the 'concrete military advantage' obtained, whether in disagreeing with a commander's judgment at the time or afterwards. Wanton and disproportionate devastation is a judgment that the actors involved fundamentally made no real calculation of proportionality in pursuit of their military objective, whether that overall objective was legitimate or not. It really is a judgment of intent. It has been adjudicated - but with a very narrow frame, so narrow that the Nuremberg tribunal refused to convict even on a reasonably plausible claim of scorched earth tactics. Where it has been found, in the ICTY, it has been on facts that make clear that the parties were engaged in intentional acts as part of a plan of illegal ethnic cleansing.

By contrast, I am not aware of any court judgment in any tribunal beginning after Nuremberg, in which proportionality as such, a commander's good faith real-time determination on the battlefield, has ever even been put to trial, much less found individually criminally liable. The deference shown to battlefield judgments, where there is not a question of illegal aims as such and where nothing indicates simply wanton indifference to the process - however much contested - making determinations of permissible or impermissible collateral damage - is nearly complete. Perhaps that situation will change over time and courts will begin to offer criteria, but that is the case now (I am of course always interested in learning of some case that has slipped by me), in no small part because no one really has much of an idea how one would develop a genuine jurisprudence of proportionality. (My Opinio Juris colleague Kevin Jon Heller makes the same point, that he doubts courts will take up judgments of this calculation of proportionality any time soon.) Proportionality of collateral damage, after all, involves weighing up two things you might otherwise have thought incommensurable - military necessity and the ends of victory versus
damage to civilians. Apples and oranges?

I guess if I am offering a possible connection here to urbicide, it is to be very cautious in thinking that we can infer from the amount of destruction an "intent" or "motive" for urbicide. If urbicide is not a description that implies a motive - a bad one, at that - then I do not really understand the application of the term. It would seem to me not a useful term if it was not being used like genocide or something similar to say, this is a separately bad thing with a specific intent.  I'm not sure I really accept that, but unless the term is intended to imply something bad about the actors doing it, it seems to me to obscure more than it illuminates. But then a question arises as to whether you can infer that bad motive on the basis of the extent of destruction, and then from some notion of disproportionality - and I would say, well, not as such. You can in a narrow set of cases in which there is evidence of bad intent inferred from the failure to take precautions, to show a process of weighing up collateral damage, etc. - followed by massive destruction: this might put you into the "wanton and disproportionate devastation" war crime. But it is a crime requiring a certain kind of intent, as evidenced by the lack of any attention to a calculus of proportionality, and Nuremberg refused to convict given that the military aim was not itself illegal and the ICTY seems to have confined itself to situations in which, whether it noted it or not, the ends of ethnic cleansing were themselves per se illegal (I did a review of these cases a few years ago, I haven't looked back at them, so maybe something new has come up in recent ICTY cases, but I haven't heard of it).

'Excessive" damage in relation to concrete military advantage, in which there has been a good faith process for weighing these up - irrespective of whether it, or its results, is contested or contestable - is a very different thing, and a quite different understanding of proportionality. They are both important facets of proportionality as used in the law of war, but they arise in different contexts.

Hope that is helpful even though not very well connected to this very interesting book!

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