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`Civilian casualty'? That's a gray area

Those who support terrorists are not entirely innocent.

July 22, 2006|Alan Dershowitz | ALAN DERSHOWITZ is a professor of law at Harvard. He is the author, most recently, of "Preemption: A Knife that Cuts Both Ways."

THE NEWS IS filled these days with reports of civilian casualties, comparative civilian body counts and criticism of Israel, along with Hezbollah, for causing the deaths, injuries and "collective punishment" of civilians. But just who is a "civilian" in the age of terrorism, when militants don't wear uniforms, don't belong to regular armies and easily blend into civilian populations?

We need a new vocabulary to reflect the realities of modern warfare. A new phrase should be introduced into the reporting and analysis of current events in the Middle East: "the continuum of civilianality." Though cumbersome, this concept aptly captures the reality and nuance of warfare today and provides a more fair way to describe those who are killed, wounded and punished.

There is a vast difference -- both moral and legal -- between a 2-year-old who is killed by an enemy rocket and a 30-year-old civilian who has allowed his house to be used to store Katyusha rockets. Both are technically civilians, but the former is far more innocent than the latter. There is also a difference between a civilian who merely favors or even votes for a terrorist group and one who provides financial or other material support for terrorism.

Finally, there is a difference between civilians who are held hostage against their will by terrorists who use them as involuntary human shields, and civilians who voluntarily place themselves in harm's way in order to protect terrorists from enemy fire.

These differences and others are conflated within the increasingly meaningless word "civilian" -- a word that carried great significance when uniformed armies fought other uniformed armies on battlefields far from civilian population centers. Today this same word equates the truly innocent with guilty accessories to terrorism.

The domestic law of crime, in virtually every nation, reflects this continuum of culpability. For example, in the infamous Fall River rape case (fictionalized in the film "The Accused"), there were several categories of morally and legally complicit individuals: those who actually raped the woman; those who held her down; those who blocked her escape route; those who cheered and encouraged the rapists; and those who could have called the police but did not.

No rational person would suggest that any of these people were entirely free of moral guilt, although reasonable people might disagree about the legal guilt of those in the last two categories. Their accountability for rape is surely a matter of degree, as is the accountability for terrorism of those who work with the terrorists.

It will, of course, be difficult for international law -- and for the media -- to draw the lines of subtle distinction routinely drawn by domestic criminal law. This is because domestic law operates on a retail basis -- one person and one case at a time. International law and media reporting about terrorism tend to operate on more of a wholesale basis -- with body counts, civilian neighborhoods and claims of collective punishment.

But the recognition that "civilianality" is often a matter of degree, rather than a bright line, should still inform the assessment of casualty figures in wars involving terrorists, paramilitary groups and others who fight without uniforms -- or help those who fight without uniforms.

Turning specifically to the current fighting between Israel and Hezbollah and Hamas, the line between Israeli soldiers and civilians is relatively clear. Hezbollah missiles and Hamas rockets target and hit Israeli restaurants, apartment buildings and schools. They are loaded with anti-personnel ball-bearings designed specifically to maximize civilian casualties.

Hezbollah and Hamas militants, on the other hand, are difficult to distinguish from those "civilians" who recruit, finance, harbor and facilitate their terrorism. Nor can women and children always be counted as civilians, as some organizations do. Terrorists increasingly use women and teenagers to play important roles in their attacks.

The Israeli army has given well-publicized notice to civilians to leave those areas of southern Lebanon that have been turned into war zones. Those who voluntarily remain behind have become complicit. Some -- those who cannot leave on their own -- should be counted among the innocent victims.

If the media were to adopt this "continuum," it would be informative to learn how many of the "civilian casualties" fall closer to the line of complicity and how many fall closer to the line of innocence.

Every civilian death is a tragedy, but some are more tragic than others.

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