5. Proving Too Much? Collateral Damage and Heritage
If one were to show that harms to heritage can weigh against harms to people, one would thereby lay the justificatory groundwork not only for intentionally harming someone who is destroying heritage but also for collaterally harming innocent people in the course of protecting heritage. Indeed, it’s hard to see how one could make a case for military intervention without showing the permissibility of collaterally harming innocent people, since wars inevitably inflict collateral damage. Of course, such harms are constrained by the requirements of proportionality and necessity. And since harms to innocent bystanders are harder to justify than harms to culpable attackers, one would need to be protecting more, or more valuable, heritage to be permitted to collaterally kill an innocent person, compared to the amount of heritage one would need to be protecting to justify killing a culpable attacker. (Here, too, then, one needs an account of the value of heritage that enables one to make these comparisons.) But once one grants the general claim that protecting heritage warrants harming people, there is no principled way to restrict this to harming those intent on destroying heritage.
We know of no explicit defense of the claim that it might be permissible to collaterally kill innocent civilians for the sake of defending heritage, despite the calls for military intervention from some quarters. Certainly, no such account is forthcoming in Weiss and Connelly’s proposal. This absence might be explained by contingent features of recent cases of heritage destruction. If a site is geographically isolated or uninhabited, there might be no innocent bystanders, and thus the question of permissible collateral killings for the sake of protecting heritage will not arise. Hence, making the moral case for such killings may not have been considered pressing.
But one cannot generalize from these particular examples to simply ignore the prospect of collateral harms: as proponents of heritage protection point out, many modern conflicts take place in urban, populated areas. This is precisely why so much heritage is at risk. One cannot plausibly protect these sites with military force without imposing at least a high risk of lethal collateral harms on bystanders. Again, the plausibility of Weiss and Connelly’s proposal rests on their being able to show the permissibility of imposing such risks, yet they offer no argument for this claim.
Part of the difficulty here is that one will need to justify, in each case, why defending this instance of heritage warrants imposing significant (risks of) harm on these innocent bystanders. In some cases, people living in proximity to a site might welcome—that is, consent to—an intervention that aims at protecting that site, because the site is valuable to them. Consenting to bear risks can make the otherwise impermissible imposition of risk permissible. But we should note that there is unlikely to be universal consent in such cases and that consent to (risks of) serious harm is not a “majority rules” game. Sometimes, the refusal of consent by one member of a group is decisive. There will also be children in communities who cannot consent to such risks. Citation: For discussion of the concern regarding children, see Jeff McMahan, “Humanitarian Intervention, Consent, and Proportionality,” in Ethics and Humanity: Themes from the Philosophy of Jonathan Glover, ed. N. Ann Davis, Richard Keshen, and Jeff McMahan (Oxford: Oxford University Press, 2010), 53; and Helen Frowe, “Judging Armed Humanitarian Intervention,” in The Ethics of Armed Humanitarian Intervention, ed. Don E. Scheid (Cambridge: Cambridge University Press, 2014), 95–112, at 108–9.
These concerns are familiar from debates regarding humanitarian intervention. But they press even more strongly here. Human life is impersonally valuable. It can thus be permissible to nonconsensually impose significant risks of harm on a bystander in order to prevent greater physical harm to others. One does not need the bystander to agree that the lives of others are valuable before one may impose such risks on her. One can also be required to incur quite significant harms for the sake of defending or saving other people’s lives. We have duties to rescue people, where these duties are grounded in the impersonal value of persons rather than in consent on the part of the rescuer.
Heritage, as we have seen, plausibly has only derivative, rather than impersonal, value. On this view, a given heritage site derives its value from its contribution to the well-being and flourishing of a certain cultural group. The claims that this type of value makes on us are much less clear. A cultural site may be very valuable to some people—it might, for example, be of great significance to a Christian community, or of considerable scientific interest—but of little or no value to those living nearby who would be endangered by its forceful protection. Their failure to value the site is not morally objectionable in the way that failing to value the life of a person would be: we cannot obviously insist that they ought to value it and unilaterally impose risks on them for its sake. Their failure to value it might not be morally objectionable at all. Given this, it is not clear that even substantial value attributed to a site by others can weigh against harms to innocent bystanders who do not themselves attach particular value to the site. As above, the fact that some people may be prepared to incur serious risks for the sake of rescuing art, in light of the value that they attach to it, does not confer on them permission to impose substantial risks of great harm to others. We should be mindful, then, that the degree of international concern regarding a site might not correlate with the degree of risk that it is permissible to impose on bystanders. It is not the international community that shoulders the collateral risks of military intervention.
In sum, there are at least three key claims that Weiss and Connelly need to defend in order to support their proposal. First, they must persuade us that damage to heritage can weigh against serious harms to humans. Second, they must persuade us that it can be proportionate to intentionally kill a person who is responsibly threatening heritage. Third, they must persuade us that it can be proportionate to foreseeably, but unintentionally, kill (or impose a high risk of killing) an innocent person in the course of defending heritage. These claims are, in their general form, the backbone of any case for military force. In more familiar parlance, they constitute just cause (i.e., the presence of a wrong that justifies a forceful response), liability to intentional defensive harms (i.e., the permissibility of targeting perpetrators of that wrong), and proportionality of collateral harms (i.e., the permissibility of foreseeably killing innocent bystanders). Their absence from Weiss and Connelly’s account is thus remarkable.