“The Morality of Cluster Bombing.” Studies in Christian Ethics 22, no. 3 (August 2009): 357-381. more

Studies in Christian Ethics http://sce.sagepub.com The Morality of Cluster Bombing Tobias Winright Studies in Christian Ethics 2009; 22; 357 DOI: 10.1177/0953946809106237 The online version of this article can be found at: http://sce.sagepub.com/cgi/content/abstract/22/3/357 Published by: http://www.sagepublications.com Additional services and information for Studies in Christian Ethics can be found at: Email Alerts: http://sce.sagepub.com/cgi/alerts Subscriptions: http://sce.sagepub.com/subscriptions Reprints: http://www.sagepub.com/journalsReprints.nav Permissions: http://www.sagepub.co.uk/journalsPermissions.nav Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 SCE the morality of cluster bombing 357 SCE Studies in Christian Ethics 22.3 (2009) 357–381 Doi: 10.1177/0953946809106237 © the author(s), 2009 reprints and Permissions: http:/ /www.sagepub.co.uk/journalsPermissions.nav the morality of cluster bombing tobias Winright saint louis university, 3800 lindell boulevard, saint louis, mo 63108 usa twinrigh@slu.edu SCE abstract Consensus among human rights groups and churches in recent years about cluster bombs has culminated in the Convention on Cluster Munitions. While there is apparent agreement that cluster bombs ought to be illegal, no substantive ethical treatment of this issue exists. In statements, references are typically made to the danger cluster munitions pose to civilians; it is alleged that these weapons are inherently immoral, and appeal is given only implicitly or in a cursory fashion to traditional just war reasoning. Taking its cue from Jesuit moral theologian John C. Ford’s influential article appearing in 1944 on ‘The Morality of Obliteration Bombing’, and drawing on the more recent work of Oliver O’Donovan on ‘immoral weapons’, this essay offers a critical moral assessment of cluster bombs and their use through attention to the principles of discrimination, proportionality, and the framework of double effect reasoning. KeyworDs cluster bomb, discrimination, double effect, just war, proportionality i n may 2008 representatives of 107 governments gathered in Dublin, ireland to draft an international treaty, with over 90 signing it in oslo, norway seven months later, categorically banning the production, use, and export of cluster munitions, as well as committing nations to destroy their stockpiles within eight years.1 the convention on cluster munitions 1 an english text of the convention on cluster munitions is available at http:/ /www. clustermunitionsdublin.ie/pdf/ENGLISHfinaltext.pdf. Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 358 stuDies in christian ethics was the fruit of a process that was initiated by norway in oslo in february 2007 after talks about cluster munitions stalled during the united nations’ normal forum for discussion of such weapons, the convention on certain Conventional Weapons. The next step is ratification, with the treaty going into effect once 30 nations have ratified it. Norway, the Republic of Ireland, Sierra Leone, and the Holy See were the first four to do so. As with the 1997 Ottawa Treaty banning landmines, the Convention reflects an emerging consensus among nations, human rights groups, and religious organizations during the last several years about cluster bombs and the pernicious threat they pose in particular to innocent civilians. During and after recent armed conflicts – such as the US-led wars in afghanistan and iraq, the hostilities between israel and hezbollah in southern Lebanon in 2006, and the fighting between Russia and Georgia in the southern georgian province of ossetia – graphic news accounts about persons injured or killed by cluster munitions have stirred world public opinion. in an article appearing in Time in may 2003, michael weisskopf shares the story of an iraqi family in Karbala. after hiding from two days of US bombing, Jabar and her six-year-old daughter Duaa Raheem emerged from their house in order to go and fetch some water. a black plastic object shaped like a C-cell battery attached to a white ribbon roused Duaa’s curiosity, so she grabbed and took her discovery home to share with her two sisters, three-year-old Duha and eight-year-old Saja. On their kitchen floor, as she situated the device on her lap and twisted a screw, it exploded, sundering Duaa in half while also killing Duha and severely injuring Saja. The grief-stricken mother’s bitter words are conveyed by Weisskopf: ‘we thought we were safe because the bombs had stopped’, says Jabar, 30, a farmer’s wife. ‘my daughters were stolen from me.’2 unfortunately, such incidents are not rare. according to a preliminary report released in november 2006 and followed up by another in may 2007 from handicap international, an organization which campaigns against cluster bombs, 98 percent of the casualties caused by these munitions are civilians, with 27 percent of these being children.3 thus, opponents of cluster munitions often claim that these weapons themselves are immoral because they are inherently indiscriminate. for example, international law scholar Virgil wiebe, who has served as a consultant to the Mennonite Central Committee and who co-founded the Cluster Munitions Coalition, a network of NGOs, faith-based groups, and 2 3 michael weisskopf, ‘the bombs that Keep on Killing’, Time, 12 may 2003, p. 43. lucy fielder, ‘injuries in lebanon revive bid to ban cluster bombs’, Christian Science Monitor, 7 november 2006, p. 11. the two reports, Fatal Footprint: The Global Impact of Cluster Munitions (november 2006), and Global Impact: The Fatal Footprint of Cluster Munitions on People and Communities (may 2007), can be accessed on handicap international’s website at http:/ / www.handicap-international.org.uk/. Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 the morality of cluster bombing 359 professional organizations campaigning against cluster munitions, alleges that these weapons are per se indiscriminate, ‘given the inherent nature of cluster bombs as wide-area munitions’.4 in his view, civilian deaths from cluster bombs are practically unavoidable and to be expected. similarly, the president of the united states conference of catholic bishops, wilton D. Gregory, in a statement issued on the eve of the US-led war against iraq in 2003, warned, ‘any decision to defend against iraq’s weapons of mass destruction by using our own weapons of mass destruction would be clearly unjustified.’5 In this connection, Gregory specified that the ‘use of anti-personnel landmines, cluster bombs and other weapons that cannot distinguish between soldiers and civilians, or between times of war and times of peace, ought to be avoided’. in his view, cluster munitions themselves are immoral due to their failure to discriminate between combatants and non-combatants, both during hostilities and in the wake of their cessation. similarly, the world council of churches regards these weapons as ‘an indiscriminate instrument that confounds the intentions of its users and brings terrible consequences to its victims’.6 hence, much of the opposition to cluster munitions stems from understandable concerns about the extremely high number of civilian casualties caused by these weapons, which seems to be disproportionate to any good achieved in their use, and supporters of the ban often allege that cluster bombs themselves are inherently indiscriminate. The treaty negotiated in Dublin undeniably reflects an international consensus about the dangers cluster munitions pose to civilians, but not everyone concurs on the solution to this problem, namely, a total ban. indeed, several nations did not participate in the Dublin conference, including the united states, russia, china, india, Pakistan and israel. why did the us oppose the treaty? according to stephen mull, acting assistant secretary for Political-Military Affairs, most US military units and ships have in their inventory cluster munitions that are regarded as having ‘a certain military utility’ and as necessary to protect american troops and interests.7 us 4 Virgil wiebe, ‘footprints of Death: cluster bombs as indiscriminate weapons under international humanitarian law’, Michigan Journal of International Law 22.1 (2000), p. 87. 5 bishop wilton D. gregory, ‘statement on iraq’ (washington, Dc: united states conference of catholic bishops, 19 march 2003), available at http:/ /www.usccb.org/sdwp/peace/stm31903. shtml. for a similar perspective from the Vatican, see archbishop sylvano tomasi, ‘“culture of Prevention”, not cluster bombs, will ensure a Just security’, L’Osservatore Romano, 2 June 2004, p. 10. 6 world council of churches, ‘statement on cluster munitions’ (geneva, switzerland: central committee of the wcc, 13–20 february 2008), para. 1, available at http:/ /www.oikoumene. org/en/resources/documents/central-committee/geneva-2008/reports-and-documents/ public-issues/statement-on-cluster-munitions.html. 7 Quoted in Daniel allen, ‘a cluster of fallacies’, Foreign Policy in Focus (3 June 2008), available at http:/ /fpif.org/fpiftxt/5270. Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 360 stuDies in christian ethics Air Force Major Thomas J. Herthel also emphasizes the military efficacy of cluster munitions, but he moreover argues that these weapons ‘are not indiscriminate by their very nature’.8 He is confident that cluster bombs can be improved technologically and used lawfully by the military so as to minimize collateral damage that is proportionate to intended military gains. although opponents of cluster munitions apparently have won the argument in that a ban has been introduced into international law, no serious ethical treatment is to be found, however, that engages the points herthel has raised. indeed, the statements from human rights and church groups instead tend to jump to the conclusion that cluster munitions are inherently immoral without offering a careful moral assessment of their use vis-à-vis the just war jus in bello criteria of discrimination and proportionality. in doing so, they verge on begging the question, taking a conclusion for granted before it is demonstrated. for as ethicist Paul ramsey wrote four decades ago in connection with incapacitating gases, ‘too many have too quickly slapped the notation ‘immoral’ upon any such weapons. no such notation belongs on any weapon, but only on a weapon’s use or the action for which the weapon is intended . . .’.9 more recently, in his The Just War Revisited, which contains a chapter on the topic of ‘immoral weapons’, oliver o’Donovan questions whether weapons themselves can be considered intrinsically indiscriminate, since discrimination ‘has to do with the intention of attack, not with the technical limitations or grossness of the means’.10 both ramsey and o’Donovan – each an eminent just war theorist for his respective generation – would have us, rather than assert that cluster munitions are inherently indiscriminate, instead submit these weapons and their use to more careful moral analysis. accordingly, while i think that nations, human rights groups and churches supporting the Dublin treaty are right to call for an international ban on these weapons, their claim that cluster munitions are inherently indiscriminate may be premature. even if it is indeed possible to say that these weapons are per se indiscriminate, i seek in this essay to provide the missing moral legwork needed to arrive at this conclusion. moreover, i will address the points herthel has raised and, contrary to his conclusions, argue in favor of the ban as a result of a moral assessment of cluster munitions and their use through attention to the principles of discrimination, proportionality, 8 thomas J. herthel, ‘on the chopping block: cluster munitions and the law of war’, Air Force Law Review 51.1 (2001), pp. 264, 267. 9 Paul ramsey, The Just War: Force and Political Responsibility (new york: charles scribner’s sons, 1968), p. 466. 10 oliver o’Donovan, The Just War Revisited (cambridge: cambridge university Press, 2003), p. 79. Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 the morality of cluster bombing 361 and the framework of double effect reasoning. the essay will proceed in four parts. The first section describes cluster bombs, their history and their use. the second considers an article, appearing in the journal Foreign Affairs in the immediate aftermath of the Vietnam war in 1974, that attempted to offer one of the first – and few – critical treatments of cluster munitions. The third section, given that the issue of cluster munitions has received little substantive attention by ethicists, turns to Jesuit moral theologian John c. Ford’s influential article appearing in 1944 in the journal Theological Studies on ‘the morality of obliteration bombing’ as a precedent for moral analysis of this question. finally, the fourth section draws on o’Donovan’s insights about ‘immoral weapons’ and critically evaluates the morality of cluster munitions and their use in light of the just war principles of discrimination, proportionality, and double effect reasoning. Clarifying Clusters: What, Where, When, Why, and by Whom? it is necessary to describe what these particular weapons are, when and why they were developed, by whom and where they have been used. approximately 70 countries currently possess cluster munitions in their arsenals, and these weapons have been used in some 35 countries and regions, including georgia, iraq, Kuwait, afghanistan, lebanon, chechnya, the former yugoslavia, angola, cambodia and Vietnam. early versions of cluster bombs were used by the soviets and germans during world war ii, and the US military has employed them in almost every conflict from the Vietnam war on.11 for example, according to a special report in USA Today, the us used in its 2003 war against iraq nearly 10,800 cluster munitions.12 cluster munitions, technically known as cluster bomb units or ‘cbus’, are canisters that are dropped by aircraft or launched from land and sea by artillery, missiles, or rockets.13 inexpensive to manufacture, each canister contains up to 650 bomblets, or submunitions, and at a certain point while over the target these are dispersed across a wide area. the wiebe, ‘footprints of Death’, p. 91. rob nixon asserts that the us has used cluster bombs in more conflicts than any other nation; see Rob Nixon, ‘Of Land Mines and Cluster Bombs’, Cultural Critique 67.3 (fall 2007), p. 164. 12 Paul wiseman, ‘special report: cluster bombs Kill in iraq, even after shelling ends’, USA Today, 11 December 2003, p. 1a; Nixon, ‘Of Land Mines and Cluster Bombs’, p. 166. 13 for the details on cluster munitions i am drawing from barbara hilkert andolsen, ‘ “the Vision Still Has Its Time”: A Social-Ethical Cryptanalysis of the Signs of the Times’, Proceedings of the Annual Convention of the Catholic Theological Society of America 57 (2002), pp. 45–46; Herthel, ‘On the Chopping Block’, pp. 234–35; Nixon, ‘Of Land Mines and Cluster Bombs’, p. 168; Claire Schaeffer-Duffy, ‘War’s Lethal Leftovers’, National Catholic Reporter 38.5 (2 august 2002), pp. 7–9; Wiebe, ‘Footprints of Death’, pp. 89–90, 111; Virgil Wiebe and Titus Peachey, ‘War’s insidious litter: cluster bombs’, Christian Science Monitor, 9 June 1999, p. 11; and Wiseman, ‘cluster bombs Kill in iraq’, pp. 1a, 6a–7a. 11 Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 362 stuDies in christian ethics bomblets sometimes come with a small parachute, so that they float toward their target. often brightly colored, small, and coming in various shapes resembling batteries, tennis balls, soda cans, or hockey pucks, each submunition, in turn, contains shrapnel, steel pellets, or ball bearings that are released when detonated in mid-air or on impact. Like a hand grenade, these metal fragments can kill or injure many enemy soldiers, especially when they are in mass formation. Not only are cluster munitions an antipersonnel weapon, as ‘dual use’ devices they are also designed to be antimateriel in that the shrapnel can penetrate and render inoperable enemy tanks, armored personnel carriers, and grounded aircraft. some cluster munitions, moreover, contain an incendiary feature that causes fires if the submunition lands upon flammable materials or fuel. Cluster munitions thus are different from unitary or single warhead munitions designed to strike a single point. they could be likened to a shotgun blast as opposed to a bullet fired from a rifle. Years ago, when I worked as a law enforcement officer, I might resort to using my shotgun, with shells containing numerous small pellets that disperse and target a wider area, in order to increase the likelihood of subduing an individual threat or, if i were outnumbered, to deal with more than one threat in an area. cluster submunitions are comparable to those shotgun pellets. in its air campaign in Kosovo against serbian forces from late march to early June 1999, nato aircraft and cruise missiles dropped approximately 1,800 cluster munitions on Kosovo and serbia, with each bomb containing between 147 and 202 submunitions, adding up to over 300,000 submunitions falling on these areas.14 because cluster submunitions blanket a wide area, referred to as their ‘footprint’, which can be as large as two football fields, or approximately one square kilometer, opponents of these weapons warn that the likelihood of hitting civilians, along with legitimate military targets, is increased – even without taking into account possible errant bombs. statements by human rights and religious groups supporting the ban thereby accuse cluster munitions themselves of failing to distinguish between combatants and non-combatants, causing significant harm to civilians during conflicts. As rob nixon critically observes, to refer to these weapons as ‘cluster’ bombs is actually a misnomer, given that what ‘distinguishes cluster bombs is less their clustering than the dispersal of their malign effects’.15 recall, moreover, that concern was also expressed about the lingering effects of cluster munitions even after hostilities have officially concluded. frida berrigan, ‘cruel Kosovo legacy: cluster bombs’, The Witness 82.6 (september 1999), p. 6; Wiebe, ‘Footprints of Death’, pp. 95–96. Herthel, ‘On the Chopping Block’, p. 231, has slightly different figures, saying that NATO dropped 1,600 cluster munitions against Serbian forces. 15 nixon, ‘of land mines and cluster bombs’, p. 165. 14 Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 the morality of cluster bombing 363 many bomblets fail to explode on impact for two basic reasons. first, submunitions may not detonate because they landed on a soft surface, such as sand, mud, weeds, water, or snow. these remain ‘live’ and thus are a continuing threat. second, there is the possibility of mechanical failure. some bomblets simply fail ever to explode or only on initial impact. the latter, like those that land on soft surfaces, still pose an ongoing threat to unsuspecting civilians who later come into contact with them. indeed, cluster submunitions had ‘dud’ rates ranging from 5 percent to 30 percent in Kosovo and afghanistan, depending on the particular type of cluster bomb and the conditions where used. in Kosovo, this meant that between 15,000 and 90,000 unexploded bomblets remained on the ground.16 here the comparison with shotgun pellets breaks down, for these individual pellets themselves do not detonate, either on impact or later on. there are no ‘dud’ shotgun pellets. thus, as wiebe puts it, many unexploded cluster bomblets are ‘de facto landmines’ that continue to be ‘indiscriminate killers for decades to come’.17 in addition, remaining unexploded ordnance impacts the environment, interferes with the efforts of displaced civilians to return to their homes, and impedes farming, fishing, and other social-economic matters that are important to the lives of these people. For example, during its conflict with Hezbollah in the summer of 2006, israel launched some 2.6 million to 4 million submunitions into southern lebanon where unexploded remnants continue to litter the countryside and threaten civilian lives. the united nations estimates that one million did not explode and that two-thirds were scattered in populated areas. a very high percentage – as many as 40 percent – of the bomblets used in lebanon did not explode immediately and remained active on the ground, harming civilians and even experienced demolition experts after the conflict had ended.18 many landed on balconies, outside front doors, in trees and gardens, and some inside homes. these will hamper southern lebanon’s economic recovery for years, especially with regard to their agriculture which specializes in olives, bananas, tobacco, and wheat. similar Schaeffer-Duffy, ‘War’s Lethal Leftovers’, p. 8; Wiebe, ‘Footprints of Death’, pp. 95–96. Wiebe, ‘Footprints of Death’, p. 87; Nixon, ‘Of Land Mines and Cluster Bombs’, p. 172. 18 Donald steinberg, ‘us should ban bomblets and get on the right side of history’, Christian Science Monitor, 30 July 2007, p. 9; Curt Goering, ‘A Call to Abolish Cluster Bombs’, Christian Science Monitor, 23 October 2006, p. 9; Fielder, ‘Injuries in Lebanon’, p. 11. Michael l. gross gives attention to the use of cluster munitions by israel against hezbollah in southern lebanon, focusing in particular on discrimination, proportionality, and double effect in ‘the second lebanon war: the Question of Proportionality and the Prospect of Non-Lethal Warfare’, Journal of Military Ethics 7.1 (January 2008), pp. 10–12. he cites a un report that estimated the dud rate at 14 per cent (p. 10); see United Nations, Mine Action Coordination Center Southern Lebanon, 2007; available at http://www.maccsl.org/reports. htm. 16 17 Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 364 stuDies in christian ethics protracted consequences may be found in the wake of other conflicts in recent decades. in laos, for instance, where bombing by the us ended in 1973, two or three laotian civilians continue to be killed, with another six or seven injured, per month due to unexploded submunition ordnance left over from the Vietnam war.19 the us dropped 80 million cluster bomblets on laos, with 10 percent failing to explode on impact, leaving 8 million to 24 million unexploded submunitions scattered across the country.20 farmers continue to be impeded from cultivating land to grow rice due to the unexploded ordnance. laotian farmer Phousavien Phetdonxay owns about 12 acres of land, but he cultivates only one because of safety concerns about unexploded ordnance. thus rural areas as well as urban population centers can be drastically affected by cluster submunitions during hostilities and long after they have ended. not only does this ordnance destroy civilian lives, it also can be inimical to their way of life. in sum, cluster munitions wreak mass destruction when deployed as well as decades after the shooting putatively stops. Criticizing Clusters: An Early Effort although in the last decade the volume of news articles about cluster bombs and policy statements from human rights groups and religious organizations critical of these munitions has reached an apex, there is virtually no scholarly literature on the issue. only a handful of articles treating cluster munitions are to be found in journals that, though they may treat ethical issues, focus primarily on foreign affairs or international law. appearing in the journal Foreign Affairs in the immediate wake of the Vietnam war in 1974, ‘weapons Potentially inhumane: the case of cluster Bombs’, authored by Michael Krepon, was perhaps the first scholarly, substantive essay to examine critically cluster munitions and their use. During the 1960s, in its war in Vietnam, the us developed cluster bombs to target a larger area more effectively and to help american aircraft avoid enemy anti-aircraft fire. With dense and extensive tree-canopied jungles in which to hide, North Vietnamese forces, anti-aircraft artillery units, and surface-to-air missile (SAM) batteries were difficult to strike. US aircrews struggled to engage and neutralize these defenses in one pass, with single bombs, and from high altitudes.21 The Soviet-made anti-aircraft units used by the north Vietnamese, for instance, proved to be knotty targets wiseman, ‘cluster bombs Kill in iraq’, p. 10a. Ibid.; Wiebe, ‘Footprints of Death’, p. 92, gives slightly higher estimates of between nine and twenty-seven million unexploded submunitions. 21 herthel, ‘on the chopping block’, p. 237. 19 20 Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 the morality of cluster bombing 365 to eliminate, even though a small amount of damage could render them inoperable, because they were only ten to twelve feet in diameter. cluster munitions, and in particular, the CBU-24, which was first tested in 1966, offered a solution. As a flak-suppression weapon, it dispersed hundreds of submunitions – safely for us aircrews who could deploy them in a single pass and from a high altitude – that pockmarked a wide area so as to destroy the anti-aircraft unit or hinder its firing. Nicknamed ‘guavas’ by the north Vietnamese, these cluster munitions soon became ‘the darling of the aviators’ of the us air force.22 given such effective utility, little debate accompanied the introduction of the CBU-24s into the US arsenal. Any serious discussion about the magnified likelihood of civilian casualties caused by using these cluster munitions was muzzled. there was neither political nor public discussion of the weapons. Krepon reported that the Joint chiefs wished to avoid a prolonged public debate that might interfere with the CBU-24’s deployment, as had happened with napalm.23 focus was kept on the military utility of these cluster munitions, and they were portrayed as conventional weapons that can lawfully be used. as Vice admiral lloyd m. mustin, who was Director of operations for the Joint chiefs of staff, commented in an interview, ‘once we tested them, the immediate question became “how many can we make?”’24 Primarily and extensively used in north Vietnam and in eastern laos, cluster bombs were less deployed in the south, perhaps due to american concerns about collateral damage to friendly civilians, which would be an implicit acknowledgement of the threat these weapons pose to civilians generally. They were dropped not only on anti-aircraft batteries in the jungle, but also on urban population centers. six north Vietnamese cities – hanoi, haiphong, nam Dinh, thai binh, Vinh, and Viet tri – were especially targeted, and their wide footprint, according to Krepon, ‘must have caused extensive civilian casualties, and in a high ratio to the military damage it unquestionably inflicted on its intended targets’.25 implied in this conjecture is that the use of the CBU-24 by the US Air Force was in tension with, and perhaps even in violation of, just war theory’s jus in bello principles of discrimination and proportionality. in this connection, Krepon’s concerns were not limited to the immediate harms posed to civilians during the conflict, for he also referred to reports comparing unexploded ordnance to land mines. michael Krepon, ‘weapons Potentially inhumane: the case of cluster bombs’, Foreign Affairs 52.3 (april 1974), pp. 595, 598, 603. 23 ibid., p. 600. 24 Quoted in Krepon, ‘weapons Potentially inhumane’, p. 598. 25 Krepon, ‘weapons Potentially inhumane’, p. 604. 22 Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 366 stuDies in christian ethics to be sure, as a scholar specializing in arms and security issues, Krepon asked some key critical questions three decades ago about the use of cluster munitions during the Vietnam war. he worried about the momentum of ‘the bureaucratic war machine’ toward ‘maximizing the possibilities of wide-scale damage to save American lives’.26 given their effectiveness and military utility, cluster munitions were employed with little serious discussion of the threat they posed to civilian lives and property. in Krepon’s view, the CBU-24 was ‘the most indiscriminate antipersonnel weapon’, both in its design and its practical deployment, used in the Vietnam war, and he expressed a deep concern that the rules of international law were ‘too fragile and hazy to protect civilians from the devastation’ resulting from these munitions and their use.27 however, although Krepon alluded to how cluster bombs and their deployment seemed at odds with the moral principles of discrimination and proportionality, in the final analysis he offered, as the title of his article suggested, a more tentative judgment of the weapons as ‘potentially inhumane’. a precedent for a more substantive and decisive analysis may be found in an earlier article, written by a Jesuit moral theologian, on the morality of obliteration bombing during the second world war. John C. Ford, SJ and ‘The Morality of Obliteration Bombing’ in ‘the morality of obliteration bombing’, published in 1944 in the Jesuit journal Theological Studies, american catholic moral theologian John c. ford, sJ offered a serious just war analysis of the strategy of area, or obliteration, bombing by military forces on both the allied and axis sides during world war ii. appearing in print with the war still underway, Ford’s essay is widely regarded as a milestone in twentieth-century just war thought. indeed, in a recent book about ford, eric marcelo o. genilo notes that this article is considered ‘the most influential article in the journal’s history’.28 it inspired similar treatments of weapons and their ibid., p. 605. ibid., pp. 595, 605. 28 eric marcelo o. genilo, John Cuthbert Ford, SJ: Moral Theologian at the End of the Manualist Era (Washington, DC: Georgetown University Press, 2007), pp. 1–2; John Howard Yoder, When War Is Unjust: Being Honest in Just-War Thinking (2nd edn; Maryknoll, NY: Orbis Books, 1996), p. 41. ford’s article is mentioned, quoted, or anthologized in several articles and books, more so in recent decades than when it was published. see roland h. bainton, Christian Attitudes toward War and Peace: A Historical Survey and Critical Re-Evaluation (new york: abingdon Press, 1960), pp. 233, 248; Joseph J. Fahey, War and the Christian Conscience: Where Do You Stand? (Maryknoll, NY: Orbis Books, 2005), pp. 103–104; J. Bryan Hehir, ‘The Lessons of World War ii: war must be limited’, Commonweal 122.14 (18 August 1995), pp. 9–10; John R. Popiden, ‘an american catholic moralist and world war ii: John ford on obliteration bombing’, Irish Theological Quarterly 56.1 (Winter 1990), pp. 1–19; and Michael Walzer, Just and Unjust Wars: A 26 27 Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 the morality of cluster bombing 367 use in subsequent decades and other conflicts. For example, in an article appearing in 1964, James w. Douglass extended ford’s incisive analysis to address the morality of nuclear bombing and deterrence.29 similarly, in 1995 when the us, the uK, and france were threatening air strikes against serbs in bosnia, J. bryan hehir drew on ford’s work to emphasize the importance and non-negotiability of the principle of non-combatant immunity.30 in what follows, ford’s approach to analyzing obliteration bombing morally will be canvassed to serve as a springboard for ethically evaluating cluster bombing. Ford began by affirming the abiding relevance of the principles of the just war tradition. although a number of moralists held that modern war is necessarily total and indiscriminate, and although ford acknowledged that much of the warfare of the early twentieth century involved devastation heretofore unimaginable, he nevertheless adamantly maintained that limited, and thus just, war is possible.31 not only did he condemn germany’s policy of Blitzkrieg, but ford turned critical attention to the allies’ carpet bombing of cities in germany and Japan. in doing so, he did not mean to morally equate germany and the allies. rather, ford accepted the view that the us was in a just war against the axis powers, at least with regard to the jus ad bellum criteria having to do with the justice in embarking upon war. at issue for him, however, was a particular means used in the conduct of the war, which falls under the purview of the jus in bello criteria having to do with justice in how a war is fought. as indicated in the article’s title, the means in question was obliteration bombing. it is important to note that ford did not attempt to evaluate morally obliteration bombs themselves; instead, he focused on a strategy of using Moral Argument with Historical Illustrations (4th edn; New York: Basic Books, 2006), pp. 151– 53, 344. i wish to thank my research assistant, stephen sterner, for providing me with an annotated bibliography of works on ford. 29 James w. Douglass, ‘the morality of thermonuclear Deterrence: can we resolve the Conflict between Absolute Principle and Strategic Necessity?’ Worldview 7.9 (october 1964), pp. 4–5. 30 J. bryan hehir, ‘Kosovo: a war of Values and the Values of war’, America 180.17 (15 may 1999), p. 10. 31 John c. ford, ‘the morality of obliteration bombing’, Theological Studies 5.3 (september 1944), p. 267. fellow Jesuit, John courtney murray, a decade later similarly acknowledged that ‘the traditional doctrine was irrelevant during world war ii’ and that it had ‘not been made the basis for a sound critique of public policies, and as a means for the formation of right public opinion’, but he added that all this ‘is not an argument against the traditional doctrine. the ten commandments do not lose their imperative relevance by reason of the fact that they are violated. but there is place for an indictment of all of us who failed to make the tradition relevant’. John courtney murray, sJ, ‘remarks on the moral Problem of war’, Theological Studies 20.1 (march 1959), pp. 53–54. Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 368 stuDies in christian ethics bombs in a certain way. accordingly, he distinguished between precision bombing, which involves definite, limited targets, and obliteration bombing, which aims at larger, unlimited targets that are ‘not a well-defined military objective, as that term has been understood in the past’.32 obliteration bombing was not simply a tactic on a battlefield but an overall strategy of war. indeed, ford culled many quotes from british and american sources at the time indicating that the uK and the us employed a ‘strategic plan of wiping out german cities’.33 the air forces of these nations aimed ‘on purpose’ to destroy industrial centers, railroads and communications, and residential districts where workers lived, ‘so that absenteeism will interfere with industrial production’.34 of course, where workers lived, so too did their spouses and children; when employees were injured and killed, so too were their families. for this reason, ford wrote, ‘the principal moral problem raised by obliteration bombing, then, is that of the rights of noncombatants to their lives in war time.’35 here he brought to bear the jus in bello criterion of discrimination, also known as non-combatant immunity. This principle requires militaries, when targeting, to distinguish between combatants and non-combatants, and to aim at combatants, not non-combatants, directly and intentionally. to intentionally and directly take the life of an innocent person is always wrong and considered murder, including during war. soldiers are legitimately targeted, even if they are only materially guilty, because of ‘their immediate cooperation in violent unjust acts that made them legitimate objects of direct killing’.36 in response to the claim that the line demarcating combatants from non-combatants is too blurred or impossible to identify or respect, Ford countered with a 25-line list – including bakers, dressmakers, piano tuners, nurses, dentists, school teachers, professors, nuns, stenographers, children, etc. – and asked whether ‘these persons are so guilty that they deserve death, or almost any violence to person and property short of death . . .’.37 in his view, the distinction between combatant and non-combatant remains perennially valid, even in modern warfare. a similar analysis appears more recently in oliver o’Donovan’s The Just War Revisited. o’Donovan retains the distinction between guilt and innocence that ford invoked. the guilty – and thus legitimate targets – are those who are directly and materially cooperating in the doing of wrong by their nation. this includes but is not limited to combatants. 32 33 34 35 36 37 ford, ‘the morality of obliteration bombing’, p. 261. ibid., p. 263. ibid., pp. 264–65. ibid., p. 269. ibid., p. 272. ibid., pp. 283–84, 286. Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 the morality of cluster bombing 369 that is, material cooperation in wrongdoing can also include politicians, mechanics, truck drivers, and others who are not in uniform. the reverse side of this is that doctors, chefs, and lawyers wearing a uniform are not necessarily combatants.38 innocence therefore has to do with not being materially cooperative with unjust war. the distinction is not always clear or black and white, and o’Donovan acknowledges that drawing the line is difficult to do. However, echoing Paul Ramsey who drew upon Samuel Johnson, o’Donovan writes, ‘yet while we puzzle over the twilight cases, we cannot overlook the difference between day and night: a soldier in his tank is a combatant, his wife and children in an air-raid shelter are noncombatants.’39 the distinction, in short, is not impossible to make and to observe. Ford would have agreed. Moreover, he argued that even if it is difficult to draw an accurate line, it is sufficient to show that there are a large number of innocent non-combatants – such as babies, small children, and the elderly – who constitute a significant proportion of the general civilian population.40 of course, ford recognized – as does o’Donovan – that the other side of the coin with regard to the principle of discrimination is that unintentional, indirect killing of civilians is permissible.41 euphemistically referred to as ‘collateral damage’, discrimination does not entail that non-combatant casualties are avoided altogether. However, concerning the allies’ strategy of area bombing of cities such as Dresden, ford asked, ‘looking at obliteration bombing as it actually takes place, can we say that the maiming and death of hundreds of thousands of innocent persons, which are its immediate result, are not directly intended, but merely permitted?’42 in this connection, he had in mind those who invoked the principle of double effect to defend obliteration bombing. while recent scholarship has shown that the principle of double effect is more of a framework of moral reasoning consisting of a number of principles, ford outlined it as follows: ‘the foreseen evil effect of a man’s action is not morally imputable to him, provided that (1) the action in itself is directed immediately to some other result, (2) the evil effect is not willed either in itself or as a means to the other result, (3) the permitting of the evil effect is justified by reasons of proportionate weight.’43 accordingly, o’Donovan, The Just War Revisited, pp. 36, 38–39. ibid., p. 38. see ramsey, The Just War, pp. 145–46. 40 ford, ‘the morality of obliteration bombing’, pp. 281–82. 41 o’Donovan, The Just War Revisited, p. 43. 42 ford, ‘the morality of obliteration bombing’, p. 291. 43 ibid., p. 289. for recent treatments of double effect, see John berkman, ‘how important is the Doctrine of Double effect for moral theology? contextualizing the controversy’, Christian Bioethics 3.2 (1997), pp. 89–114; and T. A. Cavanaugh, Double Effect Reasoning: Doing Good and 38 39 Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 370 stuDies in christian ethics those attempting to defend obliteration bombing might argue that, while civilian injuries and deaths accompany such bombing, these casualties are not the aim, or intent, of those who are conducting obliteration bombing. Non-combatant injuries and deaths are not intended, even though they are foreseen. nor are these harms the means to an end. rather, civilian casualties, which are admittedly an evil – though not necessarily a moral evil – effect, accidentally (in the philosophical sense) accompany the good effect, namely, destruction that leads to the defeat of the enemy. in addition, it might be argued, these civilian casualties are an evil that is outweighed proportionately by the good goal of defeating the enemy, shortening the war, and saving our own soldiers’ lives. ford, however, thought that all of this constituted a seriously flawed application of double effect reasoning. for starters, returning to the question of intent, ford noted that the destruction of property, including that belonging to civilians, is obviously directly intended. indeed, allied leaders acknowledged as much.44 in addition, ford quoted british and american sources who openly stated their intent with the air offensive to accomplish ‘the progressive destruction and dislocation of the german military, industrial and economic system and the undermining of the morale of the german people to the point where their capacity for armed resistance is fatally weakened’.45 thus damage to civilian lives and property was not merely a foreseen accompanying effect; instead, it was included in the intent of the bombing strategy. furthermore, and drawing on the work of John K. ryan, ford argued that any good gained by such bombing was actually incidental to the evil.46 in other words, the evil effect was first, immediate, and direct; any military advantage, on the other hand, was secondary and derivative. in ford’s view, the area bombing by the allies of civilian population centers, not only to destroy factories but also to undermine civilian morale, was a form of ‘civilian terrorization’. injuring and killing civilians, as well as obliterating their property, was actually a means to an end. as for proportionality, ford noted that obliteration bombing resulted in an evil which is ‘certain and extensive and immediate’, namely the ‘infliction of enormous agonies on hundreds of thousands and even millions of innocent Avoiding Evil (new york: oxford university Press, 2006). a helpful treatment of double effect in connection with non-combatant immunity and bombing, including the US’s dropping of the atomic bomb on hiroshima, is provided in william c. mattison iii, Introducing Moral Theology: True Happiness and the Virtues (grand rapids, mi: brazos Press, 2008), pp. 171–77. 44 ford, ‘the morality of obliteration bombing’, p. 291. 45 Ibid., p. 294; quoting from Target: Germany: The Army Air Force’s Official Story of the VIII Bomber Command’s First Year over Europe (new york: simon and schuster, 1943), p. 117. 46 Ford, ‘The Morality of Obliteration Bombing’, p. 292; see John K. Ryan, Modern War and Basic Ethics (milwaukee, wi: bruce, 1940), pp. 105ff. Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 the morality of cluster bombing 371 persons’; whereas, the ultimate good sought, namely the shortening of the war and the saving of american soldiers’ lives, was a future, more remote good that was more speculative.47 in short, the good that obliteration bombing purportedly would bring about was neither immediate nor definite. It was conjecture. Other outcomes were possible, including the opposite effect from what the americans envisioned. in fact, as ford points out, the obliteration bombing by the germans of cities in england instead stiffened the resolve and resistance of the british rather than undermined their morale.48 because ‘in the practical estimation of proportionate cause it is fundamental to recognize that an evil which is certain and extensive and immediate will rarely be compensated for by a problematical, speculative, future good’, ford doubted that the proportionality prong of double effect reasoning was satisfied. He added that even if obliteration bombing were to shorten the war and save American soldiers’ lives, another long-term effect should give pause – that is, ‘we still must consider what the result for the future will be if this means of warfare is made generally legitimate’.49 obliteration bombing could set a precedent for subsequent conflicts. Total rather than limited war might become the norm, and it would be equally available to future enemies of the us and the uK. ford thus offered a carefully reasoned moral analysis of the strategy of obliteration bombing by allied forces during world war ii. employing double effect reasoning, with substantive attention to discrimination and proportionality, he mustered a potent ethical critique of the use of area bombing. he did not condemn all bombs as inherently indiscriminate. Rather, Ford argued that it is possible to fight within the limits established by the just war tradition and that obliteration bombing need not be done, ‘even when war is waged against an enemy who has no scruples in the matter’.50 ford provided a trenchant approach for evaluating the strategy of obliteration bombing, but what would he have said about weapons, such as an atom bomb or perhaps cluster munitions, which seem inherently less amenable to discriminate or proportionate use? Carefully Considering Cluster Bombing the statements from human rights and church groups mentioned earlier in this essay rightly point to discrimination and proportionality for purchase on evaluating the moral legitimacy of the use of cluster munitions. however, they tend to cite statistics or highlight stories of 47 48 49 50 ford, ‘the morality of obliteration bombing’, pp. 298–99. ibid., p. 301. Ibid., p. 302; original emphasis. ibid., p. 267. Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 372 stuDies in christian ethics civilian casualties and then simply assert that these consequences of using cluster munitions are disproportionately high and that cluster bombs are inherently indiscriminate. of course, public statements are not necessarily the proper place for formulating a moral argument; yet, no substantive ethical treatment of this issue is cited, which perhaps should not be surprising given the little attention this topic has garnered in the scholarly literature beyond Krepon’s essay in Foreign Affairs three decades ago. therefore, having seen how ford judged the moral legitimacy of obliteration bombing, a closer examination of the use of cluster munitions will now be undertaken in order to provide the ethical legwork absent in the statements by those supporting the ban on these weapons. ford critiqued the strategy of obliteration bombing, not obliteration bombs per se. why hasn’t the same been done for cluster munitions? instead, cluster bombs themselves, rather than their use, are viewed as the problem; hence, the call for a total ban on them. It should be noted, though, that wiebe acknowledges that it is possible to examine whether it is cluster munitions themselves that are indiscriminate or their use which has been indiscriminate. indeed, most of his essay focuses on how cluster munitions have actually been used, with problems arising due to their wide footprint, especially when deployed near civilian areas, which is why, short of a ban, wiebe recommends at least making the use of cluster munitions illegal in civilian areas.51 there is still the problem of unexploded cluster ordnance, however. wiebe regards such to be de facto land mines and therefore inherently indiscriminate.52 so, let’s begin this section by examining more closely this charge that cluster munitions are inherently indiscriminate. what does the just war criterion of discrimination entail? Does it require a judgment about those who use the weapons? or, as implied in the charge that they are inherently indiscriminate, does it require a judgment about the weapons themselves? these are the sort of questions that o’Donovan considers in a chapter on ‘immoral weapons’, which he opens with the reminder that the jus in bello criteria of proportion and discrimination have to do with ways of acting. on the face of it, to describe any given weapon itself as immoral because it is inherently indiscriminate seems mistaken. the principle of discrimination is a moral guideline for the conduct of war and how battles are fought. It requires that non-combatants should not be intentionally or directly targeted or harmed.53 militaries are supposed wiebe, ‘footprints of Death’, p. 87. ibid., p. 103. 53 as o’Donovan notes, the word ‘direct’ has to do with intent, so that the difference between intended and unintended damage is equivalent to the difference between direct and indirect damage; O’Donovan, The Just War Revisited, p. 43. 51 52 Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 the morality of cluster bombing 373 to discriminate, or distinguish, between combatants and non-combatants. their intent should be to strike a legitimate military target or accomplish a military objective. Non-combatant injuries and deaths should not be intended. o’Donovan observes, though, that ‘instruments are apparently adaptable to different ways of acting’.54 the examples he gives are a surgeon’s scalpel and a pirate’s cutlass. it is possible that the surgeon’s scalpel could be used to commit murder, and a pirate’s cutlass conceivably could be used to perform a surgical operation to save someone’s life. years ago, when i worked in law enforcement, police officers sometimes used their flashlight as a baton, and i suppose that a baton could be used in ways other than as a weapon – perhaps as a stick that could be extended to someone who was out of reach and who is stuck in quicksand. again, it is how something is used, rather than the instrument itself, which usually matters with regard to discrimination and intent. or, as herthel notes, it is possible to use any lawful weapon unlawfully.55 For example, a police officer might fire her 9 mm sidearm, which is a lawful weapon for law enforcement officers in the US, at an unarmed felony suspect who is fleeing the crime scene. This would be an unlawful action, however, because in the wake of the supreme court ruling in Tennessee v. Garner in 1985, lethal force is lawful by a police officer only when she possesses probable cause to believe that the fleeing suspect poses a significant threat of death or serious bodily harm to the officer or to others.56 accordingly, herthel argues that cluster munitions are a lawful weapon that may be deployed lawfully. as with any other weapon, it is possible that a cluster bomb could be used unlawfully. in December 2008, for example, the sri lankan air force allegedly used cluster munitions on rural Paranthan, hitting a convent, which had a red cross on its roof, and killing 85 nearby cows.57 If this action against non-combatants was intentional, then this use of cluster munitions was indiscriminate and unlawful. however, herthel believes that cluster munitions can be an effective weapon, possessing military utility – and that they can indeed be intentionally used as such. Military units can discriminate between combatants and non-combatants, ibid., p. 78. herthel, ‘on the chopping block’, p. 266. 56 John Kleinig, The Ethics of Policing (new york: cambridge university Press, 1996), pp. 114–17. 57 for a news report on this incident, see http:/ /www.tamilnet.com/art.html?catid= 13&artid=27824. Also, the UN on 4 February 2009 alleged that the Sri Lankan army fired cluster munitions (denied by the sri lankan government) that hit a hospital in the northern war zone. see ‘cluster bombs shut last hospital in battle zone’, The New Zealand Herald, 5 February 2009; available at http:/ /www.nzherald.co.nz/world/news/article.cfm?c_id=2& objectid=10555218. 54 55 Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 374 stuDies in christian ethics deploying cluster weapons – even with their wide footprint – specifically against troop and convoy columns, anti-aircraft units, tank formations in an open field, or aircraft on a runway preparing to take off.58 special care is taken, in his view, to minimize non-combatant casualties; if these occur, they are unintentional. hence, in afghanistan, catholic ethicist barbara hilkert andolsen credits the us military for carefully selecting bombing targets, ensuring that they were truly legitimate military objectives, and thereby minimizing collateral civilian casualties.59 she does not believe that the us military deliberately targeted cluster bombs at or near civilian areas. it does not appear that cluster munitions have been intentionally used by the us or its allies to kill or hurt civilians in the same way that obliteration bombing was conducted during world war ii. no quotes similar to those that ford highlighted from british and american politicians and commanders are to be found today. there do not seem to be any comparable official calls for indiscriminate cluster bombing of civilian residential or industrial areas – except for an alarming statement by then secretary of Defense Donald rumsfeld, who said that women and children who were killed in eastern afghanistan were there ‘of their own free will, knowing who they’re with and who they’re supporting and who they’re encouraging and who they’re assisting’.60 while not exactly saying that these civilian deaths were intended, rumsfeld verges upon asserting that the women and children were considered combatants due to their alleged direct material support of the enemy. aside from this troubling remark, it does not appear that cluster munitions have been intentionally used by US military units on the ground, so to speak, to harm non-combatants in afghanistan and iraq. even if cluster bombs can be used discriminately, what about the high percentage of submunitions that fails to detonate immediately upon impact? is it possible to say that this unexploded ordnance itself – rather than how it is used – is indiscriminate? wiebe thinks so when he asserts that such unexploded cluster submunitions are de facto land mines. regardless of the intent of those who deploy cluster bombs, such dud ordnance poses an ongoing threat to combatants and non-combatants alike. Although he does not take into account cluster munitions, o’Donovan admits that a land mine is a weapon that, ‘while not incapable of discriminate use, is somewhat resistant to it’.61 still, this comment falls short of calling land mines inherently indiscriminate – and i suspect o’Donovan would have a herthel, ‘on the chopping block’, pp. 258–59, 264. andolsen, ‘the Vision still has its time’, p. 47. 60 Eric Schmitt, ‘A Nation Challenged: The Bombing; Pentagon Says U.S. Airstrike Killed women and children’, The New York Times, 13 march 2002, p. a14. 61 o’Donovan, The Just War Revisited, p. 81. 58 59 Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 the morality of cluster bombing 375 similar view of unexploded cluster munitions. for his part, herthel believes that the analogy between cluster munitions and land mines is erroneous. he argues that cluster munitions are not designed to function like land mines, the latter of which are actually made to lay dormant and detonate later.62 Rather, cluster munitions are designed to be anti-personnel and anti-materiel weapons, to explode on initial impact and destroy military targets. that cluster munitions may be inaccurate and have dud rates is indeed a problem, in herthel’s view, but not one that is unique to these particular weapons. He points out that all munitions, from a rifle round to a 2,000 pound bomb, are incapable of being 100 percent accurate, and that europe was littered with unexploded ordnance following world war ii. true enough, but considering the fact that cluster munitions have high dud rates – recall that estimates were 40 percent of the cluster munitions used by israel against hezbollah in southern lebanon in 2006 – and the fact that 98 percent of the casualties from cluster munitions are civilians, cluster bombs are a weapon that, while perhaps not incapable of discriminate use – to modify o’Donovan above – is highly resistant to it. Let’s assume, for now, that this high percentage of non-combatant casualties results mostly from dud submunitions and is thus an unintended secondary effect of the use of cluster munitions by military units who deploy them against legitimate military targets. in accordance with double effect reasoning, while non-combatant injuries and deaths may accompany such bombing, these casualties – even though they may be foreseen – are not intended by those who are conducting cluster bombing. o’Donovan offers the following hypothetical question as a test of intention concerning means: ‘if it were to chance that by some unexpected intervention of Providence the predicted harm to non-combatants did not ensue, would the point of the attack have been frustrated?’63 if the answer is yes, then the non-combatant deaths were not accidental, but instead were intended as either part of the means or even the goal of the attack. in o’Donovan’s view, the dropping of the atom bombs on hiroshima and nagasaki fail this test. and in this connection, i have in mind the aforementioned allegations that the sri lankan air force targeted cluster munitions in December 2008 on a convent with a red cross symbol on its roof in a rural village. Again, while intentional killing of non-combatants is unlawful and considered to be murder, non-combatant deaths that are unintentional – though foreseen – are not deemed as morally equivalent to murder. collateral damage is morally permissible, though it still needs to be assessed according to the jus in bello criterion of proportionality. before pursuing that point, however, i think the fact that 98 percent of the 62 63 herthel, ‘on the chopping block’, pp. 233, 265. o’Donovan, The Just War Revisited, p. 45. Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 376 stuDies in christian ethics casualties from cluster munitions are civilians deserves further attention. as nixon observes, these are ‘predictable’ disasters that are ‘reenacted every time’ cluster munitions are used.64 in other words, we have here not only foreseeable collateral damage but a foreseeable pattern of noncombatant casualties. after all, under several circumstances one can be blamed for unintended side effects.65 For instance, if someone drives under the influence of alcohol and kills someone with their car, such an effect from driving while intoxicated should have been foreseen as a possibility. the driver is thus morally blameworthy. he or she has not committed murder, but manslaughter. the death was neither intended nor totally accidental. the agent did not foresee the bad side effect of his action, though he should have foreseen it as a distinct possibility, which then could have been prevented or avoided. The startlingly high number of non-combatant casualties due to cluster munitions, however, does not seem to me to be merely a possibility but, instead, a probability. another example of when an agent is morally responsible for unacceptable side effects that are unintended but foreseen is sometimes referred to as ‘depraved heart murder’.66 if a person who owns an airplane, blows it up for the insurance money, foreseeing but not intending the passengers’ deaths that result from the explosion, this is a type of murder – usually second-degree murder – though it is not an intentional killing. the agent in this action has exhibited a ‘callous disregard for human life’ that results in death. Given the pattern of non-combatant casualties resulting from cluster munitions, we may be dealing therefore with something akin to depraved heart murder. such scenarios in which agents are responsible for foreseen side effects were addressed centuries ago by thomas aquinas, whose discussion of whether an innocent person may kill an unjust attacker in self-defense is often regarded as exhibiting double effect reasoning. his account of how self-defense in this case is justified, when two conditions are met, is well known: first, one may only intend to defend oneself, but not intend to kill the attacker; and second, the act of defense must be proportionate to the end.67 Perhaps less recalled, though, is what aquinas had to say about harms that are both foreseen and certain. for example, in his several references to the parable of the wheat and the tares (mt. 13:24–40), aquinas nixon, ‘of land mines and cluster bombs’, pp. 168–69. mattison, Introducing Moral Theology, p. 172. 66 tom Jackson, ‘Depraved heart murder’, Common Dreams News Center, 5 July 2001; available at http:/ /www.commondreams.org/views01/0705-01.htm. On this point, I am indebted to one of the anonymous reviewers, who also kindly provided the example i am using here. 67 thomas aquinas, Summa Theologica, trans. fathers of the english Dominican Province (Westminster, MD: Christian Classics, 1981), II-II.64.7. 64 65 Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 the morality of cluster bombing 377 interpreted Jesus’ story as a warning against harming innocent persons, even unintentionally, when one is dealing with evil.68 furthermore, in his treatise ‘on evil’ aquinas referred to a scenario in which a branch falls as a result of a woodcutter’s chopping a tree in a forest. if the forest is not regularly traveled by persons, no moral blame is attributed to the lumberjack if the branch kills someone. the victim’s death is unintended, even if it is foreseen as a somewhat remote possibility. however, if the forest is indeed regularly traveled by people, the woodcutter is morally culpable if the falling branch kills someone. according to aquinas, ‘but if evil is always or in most cases associated with the good intrinsically intended, the will is not excused from sin, although the will does not intrinsically intend the evil.’69 in a way resembling the aforementioned case of depraved heart murder, aquinas believed agents are morally responsible for unintentional effects if they are foreseen as probable or certain. It is difficult to imagine how the foreseen probability that 98 per cent of the casualties from cluster munitions are non-combatants passes this moral test. Before moving on to consider this high number of non-combatant casualties in relation to proportionality, something else that o’Donovan touches upon leads me to reconsider and perhaps expand how intent ought to be understood with regard to cluster munitions. back in his discussion of the surgeon’s scalpel and the pirate’s cutlass, where our focus was on how these instruments are used rather than on the instruments themselves, o’Donovan points out that each device is designed, however, with a purpose in mind. either instrument can conceivably be used in ways that were not originally envisioned when they were invented, but they were designed nevertheless with some specific purpose in mind. In other words, intent can be found not only in connection with a weapon’s use, but also in its very design. the process of making, designing, and even decorating weapons is an intentional act. thus it may be possible to deem a weapon as inherently indiscriminate, if it is intentionally designed to kill civilians. an example that o’Donovan considers is a biological weapon designed to spread a deadly virus through a city’s water supply.70 this point leads me Ibid., II-II.64.2 and at least five other places, according to LeRoy B. Walters, ‘Five Classic Just-War Theories: A Study in the Thought of Thomas Aquinas, Vitoria, Suarez, Gentili, and grotius’ (PhD dissertation, yale university, 1971), pp. 160ff. here i am indebted to Daniel m. bell, Jr., who brought this to my attention in his Just War as Christian Discipleship (grand rapids, mi: brazos Press, forthcoming). see also g. e. m. anscombe, ‘medalist’s address: action, intention and “Double effect”’, Proceedings of the American Catholic Philosophical Association 56, eds. Daniel o. Dahlstrom et al. (washington, Dc: american catholic Philosophical association, 1982), pp. 12–25. 69 thomas aquinas, On Evil, ed. brian Davies, trans. r. regan (new york: oxford university Press, 2003), 1.3.15. 70 o’Donovan, The Just War Revisited, p. 80; Herthel, ‘On the Chopping Block’, p. 265. 68 Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 378 stuDies in christian ethics to ask why cluster munitions are designed and decorated in ways that lend themselves to be mistaken by civilians, especially children, for soda cans, tennis balls, batteries, and the like. while an individual soldier or military unit might not be guilty of acting indiscriminately in deploying these cluster munitions, there is still room here to suggest, i think, that the collective agent of the nation that builds and uses them – and does nothing to modify the bombs so that they no longer resemble toys or soft drinks – is morally blameworthy. thus, in afghanistan, where the us dropped cluster bombs and humanitarian food parcels that were both yellow in color, leading some afghan civilians to mistake the bombs for food, the americans were forced to broadcast warnings to the population and later to change the color of the parcels.71 this shows that there is a choice in the matter. what i have said here about intent and design should also apply to design flaws. Given the dud rates of cluster munitions, why haven’t technological fixes been pursued more ardently? To minimize non-combatant casualties due to their wide footprint, perhaps cluster munitions could be produced that are precision guided. to get the dud rate at close as possible to zero per cent, perhaps cluster munitions could be manufactured with self-destruct timing devices. that these kinds of alternatives are now being researched and developed demonstrates again that there is a choice in the matter. indeed, in o’Donovan’s judgment, ‘the foresight that disproportionate noncombatant damage will be done combined with a failure to intend to avoid that disproportionate damage, presumes an intention to do that damage’.72 Those who choose, from start to finish, to make and deploy cluster bombs ought therefore to do everything feasible to circumvent and minimize foreseeable non-combatant injuries and deaths. while the analysis so far has concentrated on the moral principle of discrimination, along with attention to intent, reference has also been made along the way to the principle of proportionality. this consideration warrants further thought, too. Even those non-combatant injuries and deaths that are foreseen as possible and truly not intended need to be morally evaluated under proportionality. nearly all references to this criterion in the literature explain it as requiring that the good gained must outweigh the evil accompanying it. the focus is on how to determine acceptable from unacceptable consequences. o’Donovan thus views proportion as ‘elastic, a matter of more or less’.73 applying proportionality, understood in this way, to cluster bombing in afghanistan, andolsen holds that their use is ‘morally acceptable if . . . any harm unintentionally inflicted upon innocent See ‘Radio warns Afghans over food parcels’, BBC News, 28 October 2001; available at http:/ /news.bbc.co.uk/2/hi/world/monitoring/media_reports/1624787.stm. 72 o’Donovan, The Just War Revisited, p. 44; original emphasis. 73 ibid., p. 43. 71 Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 the morality of cluster bombing 379 civilians during bombing is proportional to the importance of the military objective’.74 She factors into the ‘harm unintentionally inflicted upon innocent civilians’ side of the balance sheet cluster munitions’ dud rates and the duration of time over which they may cause harm to non-combatants and interfere with a society’s capacity to return to a state of ordered justice. Given that 98 per cent of the casualties from cluster munitions are noncombatants, and given the way that unexploded ordnance impede farming, resettling of displaced people into their homes, and the like, it is hard to see how the use of cluster munitions passes the proportionality test. moreover, there appears to be an interesting twist here in connection with what ford said about proportionality and obliteration bombing. again, he criticized obliteration bombing for resulting in an evil that is ‘certain and extensive and immediate’, namely the ‘infliction of enormous agonies on hundreds of thousands and even millions of innocent persons’, while the ultimate good sought, namely the shortening of the war and the saving of american soldiers’ lives, is a future, more remote good that is more speculative.75 cluster munitions, however, are effective – assuming that herthel is right – in a way that is certain and immediate in achieving the good sought, namely the destruction of a legitimate military target and the saving of american soldiers’ lives. but the evil that results from cluster bombing is also certain, given the high dud rates and percentage of noncombatant casualties. this evil may not be so immediate – and thus is a more future evil – but nor is it speculative. how are we therefore to weigh these good-versus-evil consequences? Are all of the variables to be factored into each side of the balance sheet really even commensurable? I want to suggest another way to understand proportionality in connection with the use of force. Not only are police officers expected to use discriminate force, intending only to subdue or stop a dangerous suspect, they are also supposed to employ proportionate force. that is, it is not the consequences – good and bad – that are weighed; rather, proportionality has to do with weighing the alternatives and using the appropriate, fitting means. Often referred to as a use of force continuum, police officers possess a range of use of force options that may be utilized depending on a subject’s level of resistance or non-compliance.76 for example, if a suspect resists arrest with punches, an officer is not justified in resorting to his firearm. He Andolsen, ‘The Vision Still Has Its Time’, p. 47; see Herthel, ‘On the Chopping Block’, pp. 248, 267–68; and O’Donovan, The Just War Revisited, p. 62. 75 ford, ‘the morality of obliteration bombing’, pp. 298–99. 76 see Kleinig, The Ethics of Policing, p. 107; Edward A. Malloy, CSC, The Ethics of Law Enforcement and Criminal Punishment (Lanham, MD: University Press of America, 1982), p. 20; and tobias l. winright, ‘the challenge of Policing: an analysis in christian social ethics’ (PhD dissertation, university of notre Dame, 2002), pp. 320–27. 74 Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 380 stuDies in christian ethics has at his disposal, instead, several intermediary options, such as a baton or pepper spray. Police must use only the amount of force necessary to subdue the suspect. Proportionality is understood to mean finding appropriate and fitting means rather than weighing the acceptable and the unacceptable consequences of a course of action. this approach to understanding proportionality may even be congruent with how aquinas understood it. as moral philosopher g. e. m. anscombe has noted, aquinas may have had in mind proportionate means rather than ends or effects.77 that is, while proportionality has come to refer to weighing good effects vis-à-vis bad effects, it originally referred to appropriate or fitting means. A woman ought not to use a sledgehammer to swat a mosquito on her neighbor’s forehead; it would be disproportionate and morally wrong, notwithstanding her good intention. Viewed in this way, the military’s decision to use a cluster bomb should have to do with how it is the most fitting means to accomplish a legitimate military objective. if other effective means are available, especially if it is foreseen that they involve less likelihood of non-combatant casualties, then these should be utilized instead. another note about proportionality, inspired by ford’s treatment of it, should be mentioned before i conclude this analysis. his warning about the possible precedent that obliteration bombing set for the future of warfare, combined with his suggestion that such a strategy actually stiffened rather than diminished the resolve of the enemy population to resist, should give nations and their militaries today pause before they use cluster bombs. In the recent conflicts in Afghanistan and Iraq it has been crucial to win over the hearts of the civilian populations; however, using cluster munitions with the knowledge that they cause a high percentage of non-combatant casualties during hostilities and after the shooting stops threatens not only to lose these populations’ hearts, but also to plant the seeds for future terrorist acts that intentionally aim at harming non-combatants. Conclusion in this essay i have attempted to examine more closely the claim that cluster munitions are inherently indiscriminate because of the extremely high percentage of civilian casualties that result from their use. i have argued that the principles of discrimination and proportionality do indeed offer traction for a substantive and critical moral evaluation of cluster munitions and their use. Drawing on the previous work of Krepon on cluster bombs 77 anscombe, ‘medalist’s address’, pp. 24–25. Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009 the morality of cluster bombing 381 during the Vietnam war, ford on obliteration bombing during world war II, and O’Donovan’s recent reflections on ‘immoral weapons’, a number of important insights surfaced with regard to discrimination, proportionality, and double effect reasoning that are relevant for morally evaluating cluster munitions and their use today. moreover, this issue pressed me to reconsider what these two jus in bello criteria entail, and the cumulative weight of these considerations leads me to conclude that the use of cluster munitions is not morally justified at this time. given that intent is also included in the designing and making of weapons such as cluster munitions, it seems fair to call them inherently indiscriminate. If, however, technological fixes are done that make them less appealing to civilians and children, that decrease their footprint – such as precision guidance systems – and that minimize their dud rate – such as self-destruct timing devices – to as close as possible to zero per cent, then perhaps cluster munitions could be used discriminately and proportionately against legitimate military targets. short of a ban these steps ought to be pursued seriously, accompanied by clear guidelines for the moral and lawful use of cluster munitions. in addition, those who deploy cluster bombs should be required to keep, and at some point make public, records of where they were used. advance warning should also be given to civilians in an area where cluster munitions will soon be dropped. And, finally, nations using cluster bombs should be required to clean up any unexploded ordnance to save lives and help facilitate justice in the wake of conflict. a number of the critics of cluster munitions express grave doubt about technical solutions, such as self-destruct mechanisms, which themselves may fail. moreover, as the statement from the world council of churches warns, ‘lowering the rate of duds to even one per cent still creates unacceptable levels of lethal and dangerous contamination in the targeted area. one per cent of a million bomblets is 10,000 bomblets.’78 this raises again the specter of moral responsibility for actions foreseen to result in probable or certain non-combatant casualties. Given that discriminate and proportionate use of cluster munitions at this time seems, to borrow a phrase from reinhold niebuhr, at best an ‘impossible possibility’, a ban appears to be the appropriate moral course to pursue. however, as i hope this essay has shown, we can justify such a ban based on reasoning and principles from our tradition rather than simple or premature assertions about these weapons’ inherent immorality. 78 world council of churches, ‘statement on cluster munitions’, para. 6. Downloaded from http://sce.sagepub.com at SAINT LOUIS UNIV on June 15, 2009