3. Conflating Extrinsic and Intrinsic Justifications

Again, none of this is to deny that heritage is valuable and contributes to human well-being. But one must be cautious about the normative conclusions that one draws from the role of heritage in people’s lives. In particular, one must avoid illicitly trading on the connection between attacks on heritage and genocide, moving from the claim that defending heritage sometimes preempts attacks on people to the claim that defense of heritage is, in general, the defense of people, whether those people face genocide or not.

For example, Weiss and Connelly argue that, as with the original R2P doctrine, a doctrine for protecting heritage should incorporate the possibility of military intervention. The stipulated threshold for just cause for humanitarian intervention in the R2P doctrine is the “large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation.” Weiss and Connelly suggest that this formulation “maps onto” the protection of heritage: one should use military force to protect heritage when one faces “large-scale loss of cultural heritage, actual or apprehended, with genocidal intent or not, which is the product of deliberate action by a state or a nonstate actor, or of neglect or inability to act, or of a failed-state situation; or large-scale cultural cleansing, actual or apprehended.” They also suggest that “military force should be deployed only in cases of profound humanitarian distress and, by extension, serious attacks on cultural heritage—for itself and as a precursor for the mass atrocities that almost certainly will follow.”

This way of reasoning about the permissibility of using force is mistaken, wrongly implying that whatever is warranted for the protection of people must also be warranted for the protection of heritage. It conflates extrinsic and intrinsic justifications for the use of force, with its inclusion of attacks on heritage “with genocidal intent or not,” and stipulation that heritage should be defended “for itself,” immediately followed by the claim that this will prevent “the mass atrocities that will almost certainly follow.” And despite calling for defense of heritage even in the absence of any threat of wider atrocities, they conclude their paper with the claim that “cultural cleansing and mass atrocities are intertwined.” Weiss and Connelly first treat forcefully defending heritage as a natural extension of forcefully defending people and then implicitly draw on the moral force of the reasons we have to prevent genocide to support forcefully defending heritage. They offer no independent justification for forcefully defending heritage, even though this is a central, distinctive aspect of their proposal. To be clear, and as we discuss below, our claim is not that only physical threats to persons can warrant forceful defense. Other goods, such as the right to self-determination, also plausibly warrant forceful defense. It is possible that the goods that are threatened by attacks on tangible heritage also warrant forceful defense. Our claim is that one cannot infer this permissibility from the permissibility of killing to save lives.

Weiss and Connelly do in fact note that waging a justified war requires us to weigh the expected harms and benefits of that war. In the case of wars for heritage, this must mean weighing the harms of war against the protection of heritage. But they misinterpret familiar just war constraints, claiming that “proportional means [call] for the minimal scale, duration, and intensity of military force required to accomplish the goal” and that “reasonable prospects … [require] that the negative consequences do not outweigh the benefits.” The requirement that force be of the minimum scale, duration, and intensity—in other words, the least harmful means of achieving the goal—is not the proportionality constraint but rather the necessity constraint. We can see this by noting that one might employ the minimum amount of force required to accomplish one’s goal without thereby acting proportionally. For example, killing Zara might be the only—and thus the least harmful—way of stopping her from breaking Amir’s finger. But killing Zara is not proportionate to saving Amir’s finger. What Weiss and Connelly call the requirement of “reasonable prospects” is what just war theorists call the proportionality constraint. Proportionality weighs the expected harms and benefits of force. Killing Zara is disproportionate because the benefit of saving Amir’s finger does not outweigh the harm of Zara’s death. The requirement of reasonable prospects is, to give it its full title, the requirement of a reasonable prospect of success. This is usually taken to be distinct from proportionality: killing Zara is disproportionate no matter how likely it is to save Amir’s finger.

Despite noting the importance of weighing benefits and harms for judging the justness of war, Weiss and Connelly do not offer any explanation of how one might go about comparing damage to cultural heritage to harms to people. Instead, they make two contradictory moves. First, they assume that we can simply extend whatever account of proportionality we use to judge forcefully preventing harms to human beings to judge forcefully preventing harm to heritage. This is the basic structure of their proposal, which simply adopts the language of R2P for the defense of heritage. Second, they assert that establishing “a hierarchy for protecting people and property is counterproductive.” At the very least, these claims cannot both be true. One cannot do proportionality calculations without some way of ranking the relevant goods. And both are plausibly false.

The first claim is clearly mistaken: human beings and heritage are very different types of goods, and the moral significance of harming humans does not typically attach to damaging objects. Thus the permissibility of killing a person who will otherwise wrongfully kill someone else does not entail the permissibility of killing to defend heritage. One cannot simply help oneself to the language of R2P. Nor does the permissibility of lethally defending persons indicate how much harm, if any, one may inflict for the sake of defending a particular instance of heritage. It cannot tell us, for example, how many people it would have been permissible to kill to save the Temple of Bel in Palmyra.

Without at least a rough basis for comparing tangible heritage and lives, it is unclear how one might proceed with Weiss and Connelly’s proposal. And, in addition to knowing when we may intentionally harm those trying to destroy heritage, we need to know how much risk we may impose on combatants and civilians for the sake of heritage. We described above how implementing the Hague Convention increases both the risks that combatants must take upon themselves and the risks they may impose on civilians. Deploying troops to protect heritage—the goal of Weiss and Connelly’s proposal—also clearly endangers combatants’ lives for the sake of heritage, along with the lives of nearby civilians.

In the face of these essential comparisons, the idea that one could develop a framework for the permissible use of force to defend heritage without any means of comparing physical harms to people and damage to heritage looks clearly mistaken. If one is to permissibly use force, one must engage in a proportionality calculation. To do this, one must compare the harms at stake. Unless defending heritage is at least sometimes more important than refraining from killing or seriously harming people, it cannot be proportionate to kill to defend heritage. If heritage is never more important than refraining from killing and seriously harming, Weiss and Connelly’s proposal to employ military force to defend heritage does not even get off the ground. To get their proposal off the ground, they must (contra their declaration) not only develop a model of comparing harms to heritage and human beings that enables one to make the necessary proportionality calculations, they must also believe that sometimes defending heritage is more important than refraining from killing and seriously injuring humans.