Are The Victims of Flight MH17 Collateral Damage?
Tragedy, Moral Responsibility & War
By Professor Anne Schwenkenbecher (Murdoch University)
April 1, 2015 Picture: Patrick Rasenberg/ Flickr.
This article is part of The Critique’s exclusive The Great War Series Part 1: Gaza, Isis and The Ukraine.
Since the plane crashed, after being hit by “a large number of high-energy objects that penetrated the aircraft from outside”, as the report by the Dutch Safety Board puts it[i], Ukraine, Russia and pro-Russian Ukrainian separatists have been passing the blame between them.
While Russia and pro-Russian separatists claim that the plane was shot down by a Ukrainian fighter jet, Ukrainian authorities say that the plane was hit by a missile fired by pro-Russian separatists. On the day of the disaster, shortly after the incident, pro-Russian separatist leader Igor Girkin boasted on vk.com about shooting down a Ukrainian military plane.
After news agencies started reporting that a civilian aircraft had been shot down over eastern Ukraine, Girkin’s statement was quickly deleted from the website. Subsequently, the pro-Russian separatists have denied any involvement with the MH17 crash.
At this point in time, however, available facts and witness statements seem to indicate that the plane was indeed shot down by a missile and that the missile was fired from the area that is controlled by the separatists. It is not unlikely that MH17 was shot down because it was mistaken for a Ukrainian military plane.
What is happening in Ukraine?
The plane crashed in an area that is currently a conflict zone. I will only give the briefest outline of the so-called ‘crisis in Ukraine’: At the heart of that conflict, which evolved from protests in late 2013 to an armed struggle in 2014, are the political tensions between the Ukrainian pro-European west of the country and the alienated regions in the east (and south) which are predominantly Russian.
With support from Russia, a pro-Russian separatist military force has formed demanding independence from Ukraine for those regions. The separatists control parts of eastern Ukraine over which they have been fighting the Ukrainian army. In the meantime, the Ukrainian government accuses Russia of fuelling the unrest, which seems to be the view of a recent UN human rights report, too.
The situation in the conflict zone is dire: according to the UN report:
“Civilians have continued to be killed, unlawfully detained, tortured and disappeared in eastern Ukraine, and the number of internally displaced people has risen considerably despite the announcement of a ceasefire on 5 September 2014”.[ii]
On July 17th 2014, MH17 flew over the conflict zone, like several other planes on that day, and was most likely shot down by a missile. The airspace over Ukraine has since been closed.
Are the 298 victims of the plane crash collateral damage?
It is a sad fact that in most violent conflicts civilians or non-combatants – persons who are not legitimate objects of violence – are killed. In many conflicts, the number of non-combatants killed by far exceeds the number of combatant casualties.
Sometimes, there is a clear intention of targeting the civilian population, as in the air bombing of German cities during WWII from 1942. But most violence against civilians or non-combatants is not directly intended. Sometimes, it is taken into account, sometimes it is genuinely unforeseen.
Unintended harm to civilians (and their property) during violent conflicts is often referred to as ‘collateral damage’. The term ‘collateral damage’ if often criticised for its euphemism – it seems to belittle the suffering of those who are injured or killed and those left behind. I will use it here regardless in that most neutral sense as meaning unintended harm that is a side effect of an intended outcome.
There is some debate over when harm to civilians or third parties should count as genuinely unintended. For instance, when a military commander orders to bomb an enemy city, do they merely intend that their enemy surrender or do they also intend to destroy the buildings and kill the people inside them?
In response to the last question, some philosophers, such as David Lewis, have famously (and highly counter-intuitively) argued that in launching a nuclear attack on a city one need not intend to kill the people living in it[iii]. Tony Coady has called this argument ‘dotty’ and countered that just because one does not desire the destructive effect does not mean that one does not intend it[iv].
And indeed, when trying to establish whether an event can count as an unintended side effect of an action we must ask ourselves: Can the intended action be performed without causing that event? We cannot drop nuclear bombs onto cities without harming those who live in it. If we intend to drop the bomb, it makes little sense to say that we do not intend to do harm.[v]
Let us return to harm that is genuinely unintended. Unintended harm can be either incidental or accidental. Incidental harm is harm that is foreseen, but taken into account, perhaps regretfully, perhaps not. Accidental harm is genuinely unforeseen, but it may be foreseeable.
Many people think it is worse to foresee harm to someone and to carry on regardless. But some accidental harm can be just as bad (or worse) even though it is not foreseen: what if the person who caused it did not even bother to find out whether his actions might harm someone? Or – worse – what if he deliberately chose not to investigate the risks attached to his actions? Engaging in (potentially) risky activities without investigating the potential side effects and harm to others is negligent and morally the more problematic, the greater the risk and the more obvious it should have been to a reasonable person.
Are the victims of the MH17 crash ‘collateral damage’ or rather were their deaths an unintended side effect?
The first thing we must note is that it is not entirely clear whether or not there was an intention to shoot down MH17. If it is true that pro-Russian separatists shot the plane down believing it to be a Ukrainian military plane then the separatists did not intend to shoot down MH17 or any civilian aircraft for that matter, let alone kill 298 civilians. However, they did intend to shoot down a plane, foreseeing that this would kill all those on board.
“If it is true that pro-Russian separatists shot the plane down believing it to be a Ukrainian military plane then the separatists did not intend to shoot down MH17 or any civilian aircraft for that matter, let alone kill 298 civilians”
Or, in other words, when they spotted a particular plane on the horizon, they formed an intention to shoot down that plane (and they intentionally shot down that plane), believing it to be a military aircraft. The act of firing a missile at the plane with the aim of bringing it down was an intentional act.
If the separatists intentionally shot down that plane by firing a missile at it then the death of all those on board is not an unintended side effect. Just like in the nuclear bomb case discussed earlier, it makes little sense to say that one can intend to perforate the plane’s outer skin with “a large number of high-energy objects” without intending to bring down the plane and killing those inside it[vi].
Whatever the reason was for shooting down the plane (assuming that it was, in fact, shot down), and whatever false belief about the plane’s identity the intention to fire a missile at it was based on, killing those on board the plane was no unintended side effect of an otherwise intended action, because there was no other action[vii].
The deaths of the 298 people aboard MH17 were not ‘collateral damage’ in that sense. And neither is any other damage done on the basis of flawed intelligence, such as bombing a wedding party instead of attacking a military basis.
However, from a moral point of view, the really important question is not actually whether or not those who shot down the plane intended to kill civilians. Rather, we must establish how much care they took in minimizing the risk of harm to those who have done nothing to deserve to be harmed[viii].
Is there any moral justification for the harm done to the people who died in the crash?
Even if killing those aboard MH17 was not ‘collateral damage’, we are still left with the question of what the particular wrongness of firing a missile at it consists in.
When it was presumably shot down, the plane was flying over a conflict zone. Those aboard the plane were civilians or non-combatants. They were not engaged in any military activity and were not legitimate targets of attack under any definition.
According to the 1977 Protocol Additional to the Geneva Conventions, attacks on civilians are not prohibited per se, but only if they cause harm to civilians that is disproportionate in relation to the immediate military gain (article 51, paragraph 5b).
Philosophers have usually been less lenient to permit harm to those who should be immune from attack. Proportionality alone is not usually considered sufficient for permitting harm to non-combatants[ix]. Rather, scholars increasingly insist that agents engaged in risky behaviour comply with high standards of due care[x]. In war or in a violent conflict, civilians deserve that due care be taken to minimise or prevent harm to them.
One might contend that violent non-state agents – rebels, separatists, partisans, guerrilla fighters – neverdo apply due care. But this is wrong. Even non-state agents have in the past upheld strong commitments to civilian or non-combatant immunity: the Argentinian Montoneros – a terrorist organization that took special care to spare innocent civilians[xi].
Even the much more deadly Basque organisation ETA would usually issue a bomb warning in order to minimize civilian casualties. Whether or not what they did was overall right or not is another question – the point here is that it is neither impossible nor unheard of for a non-state violent agent to employ high levels of discrimination between victims.
Let us assume for a moment that MH17 was in fact shot down by pro-Russian separatists who mistook it for a Ukrainian military plane: In that case, could it be said of the separatists that they exercised due care? Did they take precautions to minimise the risk to civilians?
In fact, we need to ask whether they made sure that their intelligence was reliable, that is, that their target really was a Ukrainian military aircraft. Given the uncertainty over what exactly happened, we cannot judge whether they made sufficient efforts to avoid hitting the wrong target.
Perhaps the separatists did not have the technology to establish with certainty that the plane they were aiming at was in fact the suspected Antonov plane. However, this would not let them off the hook.
Those voluntarily engaged in inherently risky activities, such as firing missiles, acquire a duty of care to ensure that their action do not affect the wrong people. If they cannot ensure that then they should not engage in that activity in the first place[xii].
This leads us to another question: Would the rebels have been justified in attacking a Ukrainian military plane at all. During an armed conflict, those aboard a military plane belonging to one of the conflicting parties would usually count as combatants.
According to conventional Just War Theory, attacks on enemy combatants are morally permissible (as long as they are proportionate), regardless of the overall permissibility of the war or violent conflict. That is, traditionally, it has been assumed that individual soldiers do not act wrongly as long as they only target (and kill) enemy soldiers.[xiii]
But this view concerning the ‘moral equality of soldiers’ has been challenged recently and justifiably so.[xiv] Why should all combatants in an armed conflict be equally permitted in attacking and killing enemy combatants? Why should it be equally permissible for soldiers fighting a genocidal war to kill members of an ethnic minority as it is for members of that ethnic minority to defend themselves by killing those who unjustly attack them, for instance?
There are no good philosophical reasons to think that they are equally permitted in doing so. Those that have a just cause are permitted in attacking others because they fight for a just cause. While having a just cause is not sufficient for legitimizing violence, it is nonetheless necessary[xv]. Attackers without such a cause are never permitted to kill anyone – neither in wartime, nor in times of peace[xvi].
Are the pro-Russian separatists fighting for a just cause? Only severe political injustices qualify as just causes for war. Crimes against humanity, as specified by the Rome Statute of the International Criminal Court, are such severe injustices.
The denial of political independence and self-determination of eastern Ukraine, if that is what the rebels want, may be a legitimate political goal, but not necessarily one which may be defended by military violence. In other words, it does not amount to being a just cause for war and it does not entitle the separatists to kill members of the Ukrainian military, let alone civilians like those aboard MH17.
Footnotes & References
[i] According to the report: “The pattern of damage observed in the forward fuselage and cockpit section of the aircraft was consistent with the damage that would be expected from a large number of high-energy objects that penetrated the aircraft from outside.” (p. 25) http://www.onderzoeksraad.nl/uploads/phase-docs/701/b3923acad0ceprem-rapport-mh-17-en-interactief.pdf. Accessed on 21 Nov. 2014.
[ii] http://www.ohchr.org/EN/NewsEvents/Pages/Media.aspx?IsMediaPage=true&LangID=E. Accessed on 21 Nov. 2014. For more detail seehttp://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A-HRC-27-75_en.pdf
[iii] Lewis, David. (1989) Finite Counterforce, in: Henry Shue (Ed), Nuclear Deterrence and Moral Restraint, pp. 51–114 (Cambridge: Cambridge University Press).
[iv] Coady, C. A. J. (Tony). (2008) Morality and Political Violence (New York: Cambridge University Press).p. 139)
[v] Likewise, our understanding of what it means to intend an outcome would be seriously flawed if we granted that someone can intend to perforate another person’s heart with a knife ten times without intending to kill them.
[vi] Unless one has good reason to believe that those aboard the plane will survive the crash, for instance, because they are wearing special plane-crash-survival-suits.
[vii] To use an analogy: Had Don Quixote succeeded in bringing down a windmill, that outcome would not have been unintended nor would it have been a side effect of the action of attacking ferocious giants! It simply would have been an intended outcome of an action that was based on bad intelligence.
[viii] According to the conventional Doctrine of Double Effect (DDE), intention plays a significant role in assessing the morality of incidental damage: the foreseen killing of innocents may be permissible while the intended killing of innocents under the same circumstances would not be. However, several philosophers have recently argued that intentions should not be given that much weight in assessing the morality of such damage (Anne Schwenkenbecher (2014) “Collateral Damage and the Principle of Due Care” Journal of Military Ethics, 13(1): 94–105) and that the intention of the agent in performing an action could not make such a significant difference to the moral evaluation of this action (see Scanlon, T. M., / Jonathan Dancy (2000) “Intention and Permissibility”. Proceedings of the Aristotelian Society, Supplementary Volumes 74: 301-338.; Thomson, Judith Jarvis (1991) “Self-Defense”. Philosophy & Public Affairs 20: 283-311.
[ix] The exception being act-consequentialists who would grant that harm to innocents is morally permissible if this maximises the total balance of utility.
[x] See David Rodin (2004) “Terrorism without Intention”. Ethics 114(4): 752-771 , Schwenkenbecher (2012) Terrorism: A Philosophical Enquiry (Palgrave Macmillan) and Schwenkenbecher 2014.
[xi] “Innocent civilian” here means someone who has no close moral connection to the problem the violent agents fight against, that is someone who is innocent relative to their cause. For instance, a murder who is killed in a terrorist attack may be innocent with regard to the problem the terrorists combat, even though he is not an innocent person in the general sense. On the other hand, a non-innocent person is someone who has a sufficiently strong connection to the state of affairs that a violent agent fights, for instance, a high-ranking politician of the enemy party or a military commander responsible for violent campaigns.
[xii] We may wonder how much blame should be apportioned to Malaysian airlines when they decided to fly over a conflict zone when other airlines had long been avoiding that route. They, too, had a duty of care.
[xiii] This is a bit simplified: Soldiers have been seen as permitted in killing enemy soldiers as long as it is proportionate (in bello) and civilians as long as those killings comply with the doctrine of double effect.
[xiv] McMahan (2010) Killing in war. Oxford University Press. See also Schwenkenbecher 2012.
[xv] In addition to having a just cause, violent agents must have moral authority and discriminate and protect innocents. The violent campaign must be proportionate, violence must be the last resort and the agents must engage in a public discourse concerning their campaign and its goals (Schwenkenbecher 2012).
[xvi] It is, of course, possible that both parties lack a just cause. It seems to me that in such cases soldiers of neither party should be permitted in killing each other. However, if there was ever a war that all members of either party entered voluntarily, accepting the risk of being killed in combat, would they be permitted in killing one another? Arguably, their killing one another would still be wrong, purely because killing someone without a good reason is not right. That the other person agreed to being killed is not a good enough reason to kill them.
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