Tuesday, January 20, 2009

Vulnerability and International Humantarian Law

The Geneva Conventions of 1949 and their optional protocols contain many elements that clearly derive from considerations of relative or special vulnerability. The VCP states that:
Moral agents acquire special responsibilities to protect the interests of moral patients to the extent that those moral patients are especially vulnerable or in some way depending on the actions and choices of those moral agents. (for more on the VCP see Ethics of Global Responsibility)
The core value of protecting human dignity found in international humanitarian law (IHL) parallels international human rights law (IHRL) but its principles are designed to apply in situations of warfare or armed conflict. The key principle is that of distinction or civilian immunity which requires that,
Parties to a conflict shall at all times distinguish between the civilian population and combatants in order to spare civilian population and property. Neither the civilian population as such nor civilian persons shall be the object of attack. Attacks shall be directed solely against military objectives. (Crimes of War - An Educator's guide. ).
This principle, and the other core principles of IHL, such as concerning the treatment of wounded combatants or those who have surrendered, deal with what in just war theory is called jus in bello, that is, the law dealing with the moral and lawful means of war-fighting, not with the justification parties to the conflict have (or believe they have) for engaging in armed conflict, which is called jus ad bellum. Both parties to armed conflicts are equally bound by the principles IHL, whether or not they have a "just cause" for going to war. Moreover, the fact that one party to a conflict may have breached IHL and have committed war crimes does not give license to the other party to do likewise. All parties are bound by IHL at all times.

The VCP provides an ethical basis for the principles of IHL in that in situations of war and armed conflict civilians are clearly relatively vulnerable to harm as compared to armed, trained, and equipped soldiers. Civilians, whether they be women, children, or men who are unarmed and are not presenting a threat to military forces, must be protected because of their relative vulnerability. Similarly, soldiers who are wounded are vulnerable and must be protected, and so are soldiers who have surrendered and laid down their arms. It is a war crime and a violation of IHL to kill former combatants who have surrendered.

It is also quite counterproductive since if the opposing forces do not trust that if they are captured or forced to surrender they will be treated humanely, they have a greater incentive to fight to the death. In the closing days the WWII German soldiers more willingly surrendered to Allied forces than they did to the Soviet Army because the latter was under orders to "give no quarter" and take no prisoners.

The Geneva Conventions establish four general principles that are designed to regulate armed conflict so as to balance the attainment of legitimate military objectives with the protection of noncombatants:

1. Military Necessity: IHL seeks to ensure that there is a considered balance between civilian cost and military gain. The concept of military necessity acknowledges that armed forces have a legitimate interest in winning a battle or war, and that they can take military actions required to defeat their opponent. However, military necessity is always constrained by the humanitarian rules of IHL. Military necessity can never be a justification for violating the other rules of international humanitarian law, since it is already allowed for within the law.

2. Humanity: A principle that forbids the inflicting of suffering, injury or destruction not necessary for military purposes. This principle sets the framework for much of international humanitarian law, including restrictions on attacking civilian targets, use of unnecessarily cruel weapons, and humane treatment of prisoners.

3. Distinction (civilian immunity): A principle that attacks should be directed only against military targets. Some potential objectives are granted immunity, namely the general civilian population, places, localities, or objects used solely for humanitarian, cultural, or religious purposes (hospitals, churches, mosques, schools, museums, etc). Such immunity is lost if these localities are used for enemy military purpose. Yet, there is always a presumption in favor of the immunity.

4. Proportionality: A principle relating means to ends, used to determine the lawfulness of any armed attack which causes civilian casualties. "Collateral or incidental damage occurs when attacks targeted at military objectives cause civilian casualties and damage to civilian objects." "As formulated in Additional Protocol I of 1977, attacks are prohibited if they cause incidental loss of civilian life, injury to civilians, or damage to civilian objects that is excessive in relation to the anticipated concrete and direct military advantage of the attack."(Ibid).

It is important to think clearly about these principles in order to understand the criticisms that international human rights organizations raise about the behavior of parties involved in armed conflict, since they base their judgments on these principles IHL.

So, for examples, Human Rights Watch and Amnesty International, and indeed every responsible human rights organization, has condemned the firing to Qassam rockets by Hamas militants into Israeli towns and cities as a war crime. The reason is that these weapons are inherently indiscriminate and they are not being used against military targets; they are being used against the civilian population of Israel. No one would for a minute take seriously a claim by Hamas fighters that they are, in fact, not intending to target civilians, but only Israeli military targets, but that, unfortunately, the only weapons that they have available are inaccurate and sometimes miss their intended targets and cause collateral damage to civilians.

If a weapon is inherently indiscriminate and is likely to cause civilian causalities that are disproportionate to any conceivable military advantage that might be gain from their use, they should not be used. It is not sufficient, in other words, for parties to a conflict to merely claim that they are not intending that their weapons kill or injure civilians; they must act so as to insure that civilians are protected from harm unless "military necessity" requires otherwise. The act of firing rockets into cities is clearly not required by military necessity, so this case is an easy call for the human rights NGOs.

Other cases present greater challenges in applying IHL to concrete events. In recent days both Amnesty International and Human Rights Watch have issued reports criticizing the Israeli Defense Forces for using artillery shells containing white phosphorus in densely populated civilian areas of Gaza. (http://www.amnestyusa.org/document.php?id=ENGNAU200901199045&lang=e&rss=recentnews.)

White phosphorus is a highly incendiary substance that ignites on contact with oxygen. According to the Amnesty researchers who collected the evidence of its being used,

"Yesterday, we saw streets and alleyways littered with evidence of the use of white phosphorus, including still burning wedges and the remnants of the shells and canisters fired by the Israeli army," said Christopher Cobb-Smith, a weapons expert who is in Gaza as part of the four-person Amnesty International team.

"White phosphorus is a weapon intended to provide a smokescreen for troop movements on the battlefield," said Cobb-Smith. "It is highly incendiary, air burst and its spread effect is such that it that should never be used on civilian areas.”

"Donatella Rovera, Amnesty’s researcher on Israel and the Occupied Palestinian Territories said that such extensive use of this weapon in Gaza's densely populated residential neighbourhoods is inherently indiscriminate. "Its repeated use in this manner, despite evidence of its indiscriminate effects and its toll on civilians, is a war crime," she said."
In recent days, before the cease fire, white phosphorus artillery shells landed near an UNRWA compound and al Quds hospital causing fires and civilian causalties.
We warned the Israelis hour by hour through the night of the vulnerabilities here as the shells came closer and closer, and shrapnel was coming into the compound on a regular occasion," John Ging, UNWRA's Gaza director of operations, told the media. "Nonetheless, we have now been subjected to these direct hits."

Israeli Prime Minister Ehud Olmert apologized for the attack, but said Israeli forces had come under fire from the UN compound. "It is absolutely true that we were attacked from that place, but the consequences are very sad and we apologize for it," he said. (http://www.hrw.org/en/news/2009/01/16/israel-stop-shelling-crowded-gaza-city)

The doctrine of "military necessity" is sufficiently vague as to make it a difficult call as to whether the behavior of the IDF in this case was in fact a war crime. If indeed it is true that there were Hamas fighters attacking IDF soldier from or near the UNWRA site, then it is possible that military necessity required the use of these weapons in order to protect IDF soldiers on the battlefield.

Nevertheless, both AI and HRW have called for the cessation of the use of white phosphorus shells in Gaza, based largely on the pattern of evidence that the use of white phosphorus shells in crowded civilians areas is likely violate the principle of discrimination:

Human Rights Watch believes that the use of white phosphorus in densely populated areas of Gaza violates the requirement under international humanitarian law to take all feasible precautions to avoid civilian injury and loss of life. This concern is amplified given the technique evidenced in media photographs of air-bursting white phosphorus projectiles. Air bursting of white phosphorus artillery spreads 116 burning wafers over an area between 125 and 250 meters in diameter, depending on the altitude of the burst, thereby exposing more civilians and civilian infrastructure to potential harm than a localized ground burst.(http://www.hrw.org/en/news/2009/01/10/israel-stop-unlawful-use-white-phosphorus-gaza).
On January 7, 2009 an IDF spokesman told CNN, "I can tell you with certainty that white phosphorus is absolutely not being used." But on January 17th AI's researchers found indisputable evidence that it has been used in Gaza. The BBC reported on January 15th that white phosphorus shells had been used against the UN compound, and that doctors in hospitals had been treating many civilians with serious and unusually painful burns that are consistent with exposure to white phosphorus. (http://news.bbc.co.uk/2/hi/middle_east/7831424.stm)

It appears that the IDF may not have been wholly truthful when it denied its use of this weapon, but of course, control of information about battlefield methods and tactics is standard operating procedure. But, given the evidence, it is hardly credible that the IDF took every reasonable precaution to prevent civilian casualties in the Gaza conflict. It is not sufficient to claim that civilian casualties in Gaza were not intended and that they are regrettable: international humanitarian law requires that the strong take every reasonable precaution to protect the weak, defenseless, and vulnerable from unnecessary harm and injury. Given the high number of civilian casualties produced the the Gaza war, it is evident that the IDF did not do this.

The fact that Hamas is also guilty of war crimes, and that it may have employed civilians as human shields, a practice that is also a war crime and a violation of IHL, cannot be used to condone or excuse Israeli violations of international humanitarian law. Israel is responsible for its own behavior. As the smoke clears and reveals the damage produced by this conflict, I expect it will become increasing clear to unbiased observers that the Israeli military action produced an unacceptably disproportionate number of civilian casualties relative to the military objectives it achieved.

Wednesday, January 07, 2009

The Open Society and Its Enemies Today

The term 'open society' connotes personal liberty, tolerance, transparency, and democracy. It was employed by the French philosopher Henri Bergson to describe political cultures that are non-authoritarian and based on the twin pillars of personal liberty and human rights. But it was another European philosopher, Karl Popper, who gave the term its popularity when he chose it as the title of a two volume study of the roots of totalitarian and fascism that he wrote during the Second World War.

When his book, The Open Society and Its Enemies (OSE), was published in 1945 his primary target were the "closed societies" of the time, the totalitarian regimes of Nazi Germany and the Soviet Union. Popper's main goal in this work, and in his Poverty of Historicism (1957), was to trace the historical roots of these totalitarian ideologies in the history of western thought. In the first volume of OSE he argued for a heterodox interpretation of Plato's Republic which Popper portrayed as the source of the idea of utopian social control. In the second volume he attempted to show that influential nineteenth century thinkers, particularly, Hegel and Marx, adapted Plato's dangerous ideas and set them loose on the world in the form of utopian holistic historicism. While Popper vigorously opposed these systems of totalitarian control, he was emphatic about the need for open societies not not to tolerate intolerance and warned repeatedly that in order to safeguard liberty we must be constantly vigilant about forms of social control and intolerance that would subvert the possibility of openness. We must, he argued, "claim, in the name of tolerance, the right not to tolerate the intolerant" (OSE vol.1, p. 265).

More than sixty years after OSE appeared we live in a much more open world. Nazism was defeated and forever discredited; the totalitarian regimes the former Soviet Union and its planned economy has likewise fallen and has been replaced by a market economy and somewhat greater tolerance of dissent. The Chinese are this year celebrating twenty five years of economic liberalization that has ushered in an era of unprecendented economic growth and prosperity for the most populous nation on earth. There are only a handful of totalitarian societies left today. One can mention the regime in North Korea, the military dictatorship in Burma, as perhaps also al Qaeda, the Taliban, and other religious extremist groups who seek to create an Caliphate that will enforce an orthodox form of Islam.

But we should also understand that there are enemies of the open society in our midst. These foes of freedom and reason employ more subtle means of silencing dissent, sowing division, and promoting intolerance and bigotry. These enemies employ forms of propaganda and thought control designed to control what people think and believe in democratic societies, and unless we learn to recognize their tactics, we can fall prey to the threat of closing our minds to new ideas and frustrating the process of inquiry.

The idea of a open society is based on tolerance of difference and indeed the celebration of diversity of race, of religion, of politics, of culture, of taste, of values. Open societies value plurality and oppose homogeneity and above all purity. But a culture of tolerance of openness is vulnerable to various forms of lies, deception, and manipulation. By being open such societies are vulnerable to attack from elements within the society that seek to close it, not in the crude way of earlier forms of totalitarianism, by excluding people or ideas from full participation in it, but rather by sophisticated techniques of thought control and manipulation of public opinion. These techniques have gotten out of control in American politics and have created a culture of deception, in which every kind of lie and deception is tolerated and indeed celebrated as "spin".

Noam Chomsky was among the intellectuals to clearly understand this threat. Writing in the 1980s in books like Necessary Illusions and the Manufacture of Consent, he identified the forms of thought control in democratic societies that are used by the enemies of liberty and democracy to maintain their power and privilege. They employ sophisticated techniques of public relations, advertising, and propaganda to manipulate public opinion. They use the "big lie" favored by Hitler and Goebbels; they engage in revisionist historical myth-making; and they distort language in ways that Orwell would have recognized so as to make things appear other than they are. In an age of mass media and mass communication, these techniques are even more potent because those who employ them are able to use the media as an electronic megaphone to pour their poison into the ears and eyes of millions.

The the recently deceased playwright Harold Pinter was another voice who warned us about the dangers of lies and deception particularly by politicians. He contrasted literary truth, which is in his view multifaceted, and partly subjective, with factual truth:
Political language, as used by politicians, does not venture into any of this territory since the majority of politicians, on the evidence available to us, are interested not in truth but in power and in the maintenance of that power. To maintain that power it is essential that people remain in ignorance, that they live in ignorance of the truth, even the truth of their own lives. What surrounds us therefore is a vast tapestry of lies, upon which we feed.
He used the occasion of his receiving the Nobel Prize for Literature to denounce in not uncertain terms the way in which, in particular, the United States government lied about its reasons for invading Iraq saying that:
The invasion of Iraq was a bandit act, an act of blatant state terrorism, demonstrating absolute contempt for the concept of international law. The invasion was an arbitrary military action inspired by a series of lies upon lies and gross manipulation of the media and therefore of the public; an act intended to consolidate American military and economic control of the Middle East masquerading -- as a last resort -- all other justifications having failed to justify themselves -- as liberation. A formidable assertion of military force responsible for the death and mutilation of thousands and thousands of innocent people.

But exposing lies can be a challenging enterprise. In order to prove that someone is lying one must first show that the statements he or she made are factually false, then one show that the speaker believed that these statements were in fact true, and finally, one must prove that the speaker intended to deceive his or her audience by claiming certain things to be true that he or she believed to be false. Because politicians can easily conceal what it is they believe to be true and their intention to deceive, our political culture is rife with lies. But it is also awash with something else that may be even more common and more insidious --- bullshit.
I am using the term "bullshit" here in a precise, philosophical sense identified by Harry Frankfurt in his small book of the same name. In this work Frankfurt defines bullshit as speech that has no regard for the truth, but is chosen because it is likely to influence people's perceptions of reality. Lies and bullshit are closely related, in that they both involve misrepresentation: in order to lie, one must believe that something is true and then speak with the intention to make one's audience believe the opposite of what one believes to be true. Both the honest person and the liar must therefore have some regard for the truth. The bullshitter, on the other hand, "does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose" (p. 56). As Frankfurt further explains the distinction between lying and bullshit:

What bullshit essentially misrepresents is neither the state of affairs to which it refers nor the beliefs of the speaker concerning that state of affairs.... What he does necessarily attempt to deceive us about is his enterprise.... Both he and the liar represent themselves falsely as attempting to communicate the truth. The success of each depends upon deceiving us about that. But the fact about himself that the liar hides is that he is attempting to lead us away from a correct apprehension of reality; we are not to know that he wants us to believe something that he supposes to be false. The fact about himself that the bullshitter hides, on the other hand, is that the truth values of his statements are of no central interest to him; what we are not to understand is that his intention is neither to report the truth nor to conceal it. (pp. 53-55)
Frankfurt's analysis of bullshit allows us to distinguish between bullshit and fiction. When a writer of fiction, such as Pinter, or any other novelist or playwright, writes without regard for the truth, we do not call it bullshit because there is no attempt to deceive us into thinking that the speaker is attempting to tell the factual truth -- he or she is asking us to willingly suspect our disbelief and play along with the fictional premises of the work of art. Writers of fiction aren't interested in reporting the truth or concealing it, but neither are they trying to conceal that fact. But bullshitters are; they are trying to make us believe they are speaking truthfully when in fact they have no regard for the truth at all.

There is no better example of bullshit than "Joe the Plumber" from last fall's presidential campaign. Here is a guy, Samuel J. Wurzelbacher by name, who asked then candidate Barack Obama a question about the implications of his tax policies by portraying himself as a licensed plumber who was planning to buy his boss's business which he claimed was worth $250,000. In fact, as we later found out, Mr. Wurzelbacher does not have a plumber's license, his bosses' business is only worth $100,000, he himself makes $42,000 a year and owed back taxes on that amount. "Joe the Plumber" represented himself as a hard-working and successful small businessman, but in fact he was a fraud and what he said was total bullshit. He did not care whether the premises of his question were true or false, all that mattered to him was that he thought he could get Obama to admit that under his proposed tax policies he would be subject to an increase in his marginal tax rate. He just made up facts to suit his purpose.

So what happened to this bullshit artist? Instant meida celebrity and, at least among the Republican faithful, Joe to Plumber became a symbol for the notion (also bullshit) that Obama is a socialist because he favored having rich people pay a modestly higher marginal income tax rate. Rather than being ridiculed and publicly shamed, Joe the Bullshitter was lionized.

Our media culture is awash in bullshit. It is full of speech that does not even attempt to communicate truths or make claims whose veracity can be rationally assessed. Most people no longer seem to be interested in truth; what matters is someone's ability to lead his audience to accept something, or as Stephen Colbert says, to believe things on account of their "truthiness". We are suffering from "truth decay" that is rotting our ability to determine what to accept as true and worthy of belief.

The key question for defenders of open societies is how best to respond to this brown tide of bullshit that is polluting our public discourse? The financier George Soros, who was a student of Popper's, and whose main philanthropic foundation is named the Open Society Institute, wrote an interesting editorial commentary that identified the reason why lies and bullshit are threats to an open society:
Popper failed to recognize that in democratic politics, gathering public support takes precedence over the pursuit of truth. In other areas, such as science and industry, the impulse to impose one’s views on the world encounters the resistance of external reality. But in politics the electorate’s perception of reality can be easily manipulated. As a result, political discourse, even in democratic societies, does not necessarily lead to a better understanding of reality.
Soros argues that, "the separation of powers, free speech, and free elections alone cannot ensure open society; a strong commitment to the pursuit of truth is also required." He suggests that we need to have new ground rules for political discourse, that we need to inoculate the public against various forms of deception by exposing them to public scrutiny, and that we need to name and shame those who use them. Likewise, Pinter concluded his Nobel speech with these words, "I believe that despite the enormous odds which exist, unflinching, unswerving, fierce intellectual determination, as citizens, to define the real truth of our lives and our societies is a crucial obligation which devolves upon us all. It is in fact mandatory."
If in order to protect an open society we should not tolerate intolerance and bigotry, then neither should we tolerate lies and bullshit. In traditional closed societies, the pursuit of truth is frustrated by techniques of social control that limit dissent and critique of current orthodoxies. But in democratic societies such as our own, the pursuit of truth is under an even more insidious attack. By tolerating and rewarding bullshit we indicate that the truth does not matter; that one need not consider it as relevant at all. All that matters in a society that tolerates so much bullshit is that people come to believe what the bullshitters want them to believe, at least for a while.

What is to be done about the bullshit storm? I suggest that our first line of defense is to put our bullshit detectors on high alert and be prepared to recognize it and name and shame those who use it. I see some evidence that this kind of response to bullshit and deception is beginning to appear more frequently in the mainstream American media. As a long time reader of such publications as the Nation, the New York Review of Books, and Salon.com (not to mention Chomsky and Pinter), I am used to learning that the things reported in the mainstream corporate new media are lies and bullshit. But I have recently been amazed that correspondents from these liberally biased news media have begun to become regular guests on cable TV news shows such as Keith Olberman's Countdown and on the Rachel Maddow Show. What I appreciate about these cable new shows is that their hosts, Olbermann and Maddow, are not afraid to name and shame the liars and bullshitters. The other night, for instance, in talking about the flap over Pastor Rick Warren claiming that he never compared gay marriage to incest and pedophilia, Maddow simply showed a video clip of Warren saying that he is opposed calling relationships between brothers and sisters, men and children, and men with multiple wives "marriage" and that he believes that gay marriage is comparable to them. She nailed him in a lie and he was even a finalist for the "Denial is not just the name of a river in Egypt" award for the most barefaced lie of the year (Sen. Ted Stevens won that one).

Olbermann and Maddow are, of course, using humor and political satire as defenses against bullshit; a technique pioneered by Jon Stewart and Stephen Colbert on their wildly popular late night shows on Comedy Central. Using comedy to convey political criticism is a great anti-bullshit technique because comedy, like fiction, is not supposed to be taken seriously as an attempt to speak the truth. However, like fiction, one can invert their assumption by mocking and making fun of those who lie for a living -- what Olbermann calls professional prevaricators -- and with tongue in cheek, outing their deceptions. While seeming not to be pursuing the truth, one can speak truthfully about what others are lying and bullshitting about.

The Blogosphere is, of course, also full of bullshit, but it is sometimes a good place to go to find bullshitter detectors doing their duty. The You Tube effect, shown, for instance, with the "macaca" episode involving the Virginia politician George Allen, came from blogs that posted the video showing exactly what Allen had said. Politicians no longer have plausible deniability when there are video cameras on everyone's mobile phones.

To be continued....



New Look for 2009

I have decided to change the looks of this blog, delete the old posts from past years, and start over with new resolve to keep it up to date with comments on current events.