Collateral Damage
CrowdSource 6.16.2025
Welcome to CrowdSource, your weekly guided tour of the latest intellectual disputes, ideological disagreements and national debates that piqued our interest (or inflamed our passions). This week: as bombs threaten civilians in Iran and Israel, we review recent debates about war and non-combatants.
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“Legal Maneuver Space”
Voices within the US military believe that future wars will require looser enforcement of the law of armed conflict (LOAC), reports Colin Jones for the New Yorker.
Judge, Jury and Executioner. Future wars will be large-scale combat operations [LSCOs] which will require “soldiers … to decide for themselves, without legal counsel and without clearance from up the chain of command, what they could target, what weapons they could use, and whether expected civilian casualties were acceptable.”
“Near-Peer Adversary.” The LSCO these men are thinking about is probably a war with China, as Phil Klay’s 2023 report suggests.
Gaza as Prelude. “Gaza not only looks like a dress rehearsal for the kind of combat U.S. soldiers may face,” Jones writes. “It is a test of the American public’s tolerance for the levels of death and destruction that such kinds of warfare entail.”
In “The Eighteenth Gap,” a 2021 Military Review article that’s a main source for Jones’ report, Lt. Gen. Charles Pede and Col. Peter Hayden (both US Army) write: “If we are to win on Battlefield Next, we must be ready to fight with the law that is, not the law as some would wish it to be. Decades of surgical strikes with precision weapons and weaponeering has its place. That place is not LSCO.”
“Eighteenth Gap” alludes to a 2017 list of seventeen conventional warfighting capability gaps in the US military. Pede and Hayden identify an eighteenth gap: “our legal maneuver space.”
Mind the Gap. While “the law of war clearly recognizes there must be legitimate constraints on violence,” argue Pede and Hayden, it requires less scrupulosity over targeting non-combatants.
Pede and Hayden add: The military must remind “the well-meaning, the academic, and the critic that while surveillance ‘soak,’ patterns of life, and precision strikes may be prudent as a policy matter … they are not required by the rules of war.”
Counterargument. Harvard Law professor Naz K. Modirzadeh wrote a soon-to-be-published paper criticizing Pede and Hayden’s legal reasoning.
Who’s to Blame?
Some recent meditations about war and non-combatants:
“Morality Becomes Superfluous.” In April, English critic Terry Eagleton wrote:
There are also those of us who hold that massacring the innocent — non-combatants — is never morally permissible whatever gains it might bring you, and that to see such mass slaughter as mere collateral damage is a moral obscenity. … If you’re allowed to do that, then you’re allowed to do more or less anything, and all talk of morality becomes superfluous.
Shared Blame.
, last week, on civilian deaths and moral responsibility in Gaza:
The responsibility for this is shared. There are countless miles of deep tunnels where civilians could have been protected from the IDF onslaught from the skies — but Hamas chose to sacrifice its women and children as a horrifying weapon in their asymmetrical warfare. It takes an extreme sociopathology to do that kind of evil — and we saw how sick they are on October 7. But as Hamas put its children at intolerable risk, the IDF also went ahead and killed them anyway.
Blockade Ethics. Last week, Rutgers Law professor Adil Haque noticed a curious difference between the new edition of the U.S. Naval War College’s Newport Manual on the Law of Naval Warfare and the UK’s Conflict, Hunger and International Humanitarian Law: A Practitioner’s Legal Handbook, both published this year.
Newport Manual: “According to some authors, the blockading power must, if the civilian population of the blockaded area is not adequately supplied with food and other goods essential for its survival, provide for the free passage of such goods. Such an absolute obligation has no basis in customary international law.”
Handbook: “Once a blockade is established, if the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must allow the free passage of such items.”
Emojis Can’t Express ... Political science professor David Carroll Cochran (author of The Catholic Case Against War) critiques the language used by Vance, Hegseth, Rubio and all other members of Signalgate:
… when informed that the first residential building had been destroyed, reactions among the Christian participants ranged from “Excellent” to “a good start” to “Good job Pete and your team!!” … It reads more like a marketing team nailing a pitch meeting than a group coordinating large-scale human killing.
Thinking About War
A few philosophical resources:
Aquinas and Augustine. A 2012 New York Times article, which reported about the White House’s controversial method for counting (or rather, undercounting) civilian casualties, revealed then-President Obama to be a reader of “the ‘just war’ theories of Christian philosophers” Thomas Aquinas and Augustine of Hippo.
What Is and Isn’t Murder. A useful distinction by the English philosopher Elizabeth Anscombe, in a famous pamphlet about Harry Truman and the Bomb:
Not Murder: “… if you attack a lot of military targets, such as munitions factories and naval dockyards, as carefully as you can, you will be certain to kill a number of innocent people; but that is not murder.”
Murder: “For men to choose to kill the innocent as a means to their ends is always murder … with Hiroshima and Nagasaki we are not confronted with a borderline case. In the bombing of these cities it was certainly decided to kill the innocent as a means to an end.”
A Basic Principle. “A democracy should not ask its soldiers to engage in war in a way that will destroy their souls,” said novelist and veteran Phil Klay on Wisdom of Crowds.
From the Crowd
Forget(ful) Foucault?
adds some interesting context to our discussion about transgression and Michel Foucault’s book, Discipline and Punish, in our podcast episode with . Perhaps Foucault was not 100% accurate in his famous book:Foucault describes the drawing and quartering of Robert-François Damiens, who made a feeble attempt to assassinate Louis XV in 1757. This was the first attempt on the life of a French king since François Ravaillac succeeded in killing Henri IV in 1610, and so also the first time this means of execution has been used since then.
Foucault doesn’t go into this but interesting to note the difference in how the 1610 and 1757 crowds responded. In the first case the crowd was an accomplice or even participant in the execution. From an account by a young Polish nobleman visiting Paris in 1610:
“One bookbinder, an elderly man, probably over 50 years old who was the landlord of one of my fellow Poles — a certain Piotr Branicki — was extremely enraged against him. This landlord, who looked of sound mind, with a huge beard, brought several pieces of the fl esh of the executed with him, and out of enormous fury, out of venom, cooked scrambled eggs with them and ate it, which we witnessed with our own eyes. He even had the nerve to invite us to join this banquet, to help him eat the meal, but instead we spat in his face and left him. As I understand, this man was so filled with ruthless venom at this time, that it made him react as some dog.”
As far as I can tell, nothing like this happened in 1757. An account from the memoirs of Casanova:
“We had the courage to watch the dreadful sight for four hours. The circumstances of Damiens’ execution are too well known to render it necessary for me to speak of them; indeed, the account would be too long a one, and in my opinion such horrors are an offence to our common humanity.
“Damiens was a fanatic, who, with the idea of doing a good work and obtaining a heavenly reward, had tried to assassinate Louis XV.; and though the attempt was a failure, and he only gave the king a slight wound, he was torn to pieces as if his crime had been consummated.
“While this victim of the Jesuits was being executed, I was several times obliged to turn away my face and to stop my ears as I heard his piercing shrieks, half of his body having been torn from him, but the Lambertini and the fat aunt did not budge an inch. Was it because their hearts were hardened? They told me, and I pretended to believe them, that their horror at the wretch’s wickedness prevented them feeling that compassion which his unheard-of torments should have excited. The fact was that Tiretta kept the pious aunt curiously engaged during the whole time of the execution, and this, perhaps, was what prevented the virtuous lady from moving or even turning her head round.”
So Casanova was horrified by the spectacle of public torture, and his friend Tiretta was busy with Angelica Lambertini (“a wealthy widow famous for her sex life”).
Presumably Foucault was aware of Casanova’s account, so why didn’t he mention it? I think for his purpose of discussing “the disappearance of torture as a public spectacle” in the nineteenth century it was useful to present the 1757 episode as more typical of eighteenth century Paris than it actually was.
See you next week!
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This week's CrowdSource on WoC is a really beautifully mashup on the tenuousness of constraints on violence in war.
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