Noncombatant Immunity, Blackwater, and the State Department

I teach a graduate seminar on normative analysis in public policy; basically, an ethics and political philosophy course with a heavy "applied" element. Yesterday, we discussed just war theory and, among other cases, the massacre at My Lai was a topic of discussion. One issue raised to provide historical context was that the American soldiers who committed the atrocities at My Lai had previously been under heavy fire and were terribly war-worn. This element fit into that part of just war doctrine called the principle of "non-combatant immunity." According to this principle, innocent civilians can never be an intentional target of military forces. The principle has its root in the pragmatic consideration underlying all of just war doctrine: that, even if wars are a necessary evil, it is in everyone's interests to seek to avoid mass carnage. Wars are to be fought solely between combatants. This is why terrorism is thought to be a great evil - it is by definition the intentional killing of innocents. Wars, however, always kill innocents and thus the question for moral thinkers in a context of war becomes one of how we interpret and act upon the principle of noncombatant immunity when there are cases in which striking an important military target also eventuates in killing civilians.

There are a variety of arguments regarding the principle, which are not necessary to go into here, but two contrasting views are 1) the view that killing civilians is acceptable if to do otherwise would put soldiers at greater risk, and 2) Michael Walzer's view that the principle is only meaningful if a military force actively puts itself at risk to avoid civilian casualties. But international law and the ethics of war generally treat the intentional killing of civilians - and even an unintentional but strong likelihood of killing innocents - as murder, rather than simply an unfortunate consequence of war. This is what makes the My Lai atrocity a case of mass murder.

The consideration that the soldiers at My Lai were war-weary and skittish is often raised as a mitigating factor in how we judge the murders. For instance, we might think that stealing is wrong, but we can make distinctions between someone who steals fruit because his children are starving and someone who steals someone else's life-savings because he wants to fill his house with wide-screen televisions. Although both cases would be murder, we might also make distinctions between a wife who kills her abusive husband and someone who kills another for their wallet. Mitigating circumstances are important in judging a case in moral and legal terms. While a case such as My Lai is clearly murder on pretty much any coherent legal or moral account, we may nonetheless consider whether there are mitigating factors and whether the soldiers' weariness, anger, and fear are indeed such factors in how they are judged and what punishments they face. I'm not saying that these actually are mitigating factors (or that there are any possible in a case like My Lai), but that they have often been raised as potentially mitigating factors (perhaps especially by those who seek to avoid political fallout).

In the Iraq War, the government defense of soldiers who have committed crimes in Iraq (murder, rape, torture, etc.) almost always includes the allegedly mitigating factor of, essentially, the soldier(s) being in a tense, stressful war zone. This, on its own right, makes a mockery of the principle of noncombatant immunity. Noncombatant immunity is a principle in the conduct of war (jus in bello). The war comes first, not as an afterthought, and wars are quite obviously tense. In the case of the massacres at My Lai or at Haditha, the fact of being in a war-zone is, in a rather austere sense, irrelevant as a mitigating factor.

Blackwater mercenaries are not official combatants; they're members of a private company contracted by the US government (Blackwater, however, might not even be under contract - something to look into here, press). But I think we can treat them as regular combatants for purposes of moral arguments since they are employed to do the job of combatants. It's still perplexing to me why they should be employed at all to do jobs that the military could do, but there they are functioning largely in a military capacity as government-hired mercenaries.

Blackwater has a history of committing murders in Iraq, but the issue has only come to public consciousness with the September 19th killings at Nisour Square in Baghdad. Here's one description of the previous, September 9th case that has since come to light.

On Sept. 9, the day before Army Gen. David Petraeus, the U.S. military commander in Iraq, and U.S. Ambassador Ryan Crocker told Congress that things were getting better, Batoul Mohammed Ali Hussein came to Baghdad for the day.

A clerk in the Iraqi customs office in Diyala province, she was in the capital to drop off and pick up paperwork at the central office near busy al Khilani Square, not far from the fortified Green Zone, where top U.S. and Iraqi officials live and work. U.S. officials often pass through the square in heavily guarded convoys on their way to other parts of Baghdad.

As Hussein walked out of the customs building, an embassy convoy of sport-utility vehicles drove through the intersection. Blackwater security guards, charged with protecting the diplomats, yelled at construction workers at an unfinished building to move back. Instead, the workers threw rocks. The guards, witnesses said, responded with gunfire, spraying the intersection with bullets.

Hussein, who was on the opposite side of the street from the construction site, fell to the ground, shot in the leg. As she struggled to her feet and took a step, eyewitnesses said, a Blackwater security guard trained his weapon on her and shot her multiple times. She died on the spot, and the customs documents she'd held in her arms fluttered down the street.

And here's one from February 2nd.

Habib Sadr, the network's director general, said the three guards, members of Iraq's Facilities Protection Service, were at their post at the back of the complex. A towering blast wall was a short distance in front of them to protect the compound from Haifa Street, which is notorious for car bombings and drive-by shootings.

According to Sadr and Interior Ministry officials, the three were picked off one by one by Blackwater snipers stationed on the roof of the 10-story Justice Ministry about 220 yards away on the opposite side of the street.

Nibras Mohammed Dawood was shot first as he stood in a sand-bagged guard post. Azhar Abdullah Ali was shot when he ran to help. Sabah Salman Hassoun was shot when he, too, tried to aid his wounded colleagues. All were between the ages of 20 and 25, Sadr said.

They multiply....

Yet, the State Department has defended Blackwater. They have said that they need Blackwater's services to keep State employees in Iraq safe. Fine, although as I mentioned above, we still don't have good reasons why the actual military couldn't take on this role. But these Blackwater cases and others like them are nothing but murder. There is a pattern and until the shootings at Nisour Square, this pattern was not public (as in American public, not Iraqi public) and the State Department apparently had little inclination to make these cases public or punish or even criticize Blackwater. Does the State Department officially condone the murder of innocents in the name of its own safety? It seems so, and the recent pattern of justification is eerily familiar.

The two-page [embassy] report, described by a State Department official as a "first blush" account from the scene, raises new questions about what transpired in the intersection. According to the report, the events that led to the shooting involved three Blackwater units. One of them was ambushed near the traffic circle and returned fire before fleeing the scene, the report said. Another unit that went to the intersection was then surrounded by Iraqis and had to be extricated by the U.S. military, it added...

Witnesses and the Iraqi government have insisted that the shooting by the private guards was unprovoked. Blackwater has claimed that its guards returned fire only after they were shot at. The document makes no reference to civilian casualties. Eleven Iraqi civilians were killed and 12 wounded in the incident. The report said Blackwater sustained no casualties...

The report, which is designated sensitive but unclassified, differs significantly from the account of the Iraqi Interior Ministry and several witnesses interviewed at the scene. According to those accounts, the Blackwater guards moved into the traffic circle in a convoy of armored vehicles, halting traffic and then firing on a white sedan that had failed to slow down as it entered the area. The car burst into flames, killing the occupants, according to these accounts. The Blackwater team then unleashed a barrage of fire into the surrounding area as people tried to flee in the pandemonium.

Sarhan Thiab, a traffic policeman who was in the circle at the time, said Iraqi police did not fire on Blackwater. "Not a single bullet. They were the only ones shooting," said Thiab, who said he and other traffic officers fled to nearby bushes once the shooting began.

"All the vehicles were shooting. They were shooting in every direction," said a senior Iraqi police official who spoke on condition of anonymity because of the ongoing investigations. "They used a rocket launcher or grenade launcher to hit the car. They were supported by two helicopters who were shooting from the air."...

Condoleeza Rice has ordered an investigation. That is, of course, a necessary step. But she and other State Department officials have also repeatedly defended Blackwater since the September 19th violence. One central problem for Rice is that this is simply a well-publicized account of one instance in a pattern of violence which has been allowed to continue. Not until political damage became possible did Rice act, and the first action was to control the information flow to the media and the public. And now the story begins to turn into one of "bedlam" at the scene framed as if "bedlam" in a fundamentally anarchic war-zone is a mitigating factor in Blackwater's murder of innocent civilians.

Employees of this company, in the service of the US government and thus ostensibly the American people, have killed innocents in situations which cannot be defended by appealing to even the most flexible exceptions to the principle of noncombatant immunity. As such, they can only be treated as murderers. It would be wise for State to acknowledge this as soon as possible.