Introduction:

She noted the relevance of her own experience, as someone who lived for nearly seven years within a situation of civil war, in Lebanon, in the 1970s, experiencing warfare the way most people directly affected by it experience it-- as a 'consumer' rather than a producer of warfare. She said that her presentation would cover three main areas:

1. the general horrors of war and of state failure;
2. a general consideration of a proposal that a 'Hippocratic oath' approach should be used whenever governments or people from rich nations are considering any actions that might affect citizens of very-low-income countries; and
3. a consideration of various theories of punishment, since that was the justification that the U.S. government had been using for the large-scale attacks that it had been sustaining against al-Qaeda and the Taliban in Afghanistan, over the preceding two days.

Part 1: The horrors of war and of state failure

But after Sept. 11th, and with the U.S. making active plans for reprisals, including large-scale troop deployments toward Afghanistan, two serious developments occurred inside the country. First, the international aid agencies pulled all their non-Afghan staff members out of the country, and suspended shipments of bulk food aid into it. Second, many scores of hundreds of thousands of Afghanis fled from their homes and their local support systems (however fragile), taking to the roads out of fear of the long-awaited American reprisals. Indeed, she said, it was possible that even before the U.S. started bombing Afghanistan, more civilians might have been killed there as a result of U.S. actions than had been killed in the attacks of Sept. 11th. (And for anyone with any knowledge of the situation in Afghanistan, a result like this would have been foreseeable.)

Ms. Cobban underlined, however, that such civilian Afghan deaths as had occurred under these circumstances had not been intentionally inflicted by the U.S. government, which made them of a different moral order to the deliberate targeting of civilians by the perpetrators of the September 11th attacks.

Ms. Cobban noted that the two phenomena of war and of state failure share many similar features, including the unpredictability of the outcomes of any actions, even where intentions are good. She said that in both cases, there are real ethical dilemmas around the question of how to deal with the problems of human populations captive to oppressive forces, as is the case of people living under the rule of groups like the Taliban or the Rwandan interahamwe.

Part 2: A 'Hippocratic oath' approach to intervention

First, she said, the idea of a Hippocratic-oath style approach implies a recognition of the existing disparities in power between strong and weak nations. This, she said, is analogous to the power disparity that exists in a doctor-patient relationship. The doctor generally has more power in this relationship: she has the knowledge, the expertise, and the access to healing techniques that are needed by the patient. The patient may understand little about her ailment but has an urgent need for healing.

The existence of a Hippocratic-oath relationship between doctor and patient recognizes, however-- and this is a second important aspect of the oath-- that there is a fundamental equality of status between the two parties to this relationship. The doctor voluntarily undertakes to curtail any abuse she might otherwise be tempted to make of her power-superiority over the patient. We do not (or should not) treat doctors as if they are in any existential way any better than non-doctors; we do not treat them like an elevated, priest-like class. They are fellow-citizens like the rest of us. And doctors, for their part, certainly should not treat patients as being in any way a lesser order of beings then themselves. Patients deserve full respect as fellow humans. They cannot be used merely as 'means' to the physician's own 'ends'.

Third, a Hippocratic-oath relationship gives recognition of the fact that many of the tools that a physician wields in his task of healing are powerful, and may indeed cause harm if not used wisely. The fact that physicians and society see a need for a Hippocratic oath gives fairly explicit recognition of the fact of this harm-causing potential of many of the physician's techniques, such as cutting people with knives, or prescribing powerful drugs.

Finally, the fact of a Hippocratic-oath relationship gives some implicit recognition of the unpredictability of the actual outcomes of the physician's intervention. Physicians have an obligation to intend to do no harm. But they cannot guarantee that harm will not inadvertently be caused by the powerful tools at their command. That is why, after all, with regard to so many medical procedures, we now require patients to sign 'informed consent' forms, to express their understanding of this degree of unpredictability. For its part, the Hippocratic commitment, sincerely undertaken, places physicians under an obligation to inform themselves about those potentially damaging side-effects, and to take steps to prevent, to watch out for, and to seek to mitigate such 'collateral damage'.

Ms. Cobban said that the above four assumptions that are embedded in our thinking about the relevance of and need for a Hippocratic oath in the doctor-patient relationship may all be relevant when it comes to considering the context of strong, rich nations seeking to intervene in the affirs of very-low-income nations.

Firstly, everyone is aware of the power disparities involved in any such situations, so it makes no sense to ignore them or try to paper them over, and it is much better to give them open recognition.

Secondly, it is important for the governments and people of strong nations to recognize and to communicate that, despite those power imbalances, they share the fundamentally equal status of a shared common humanity with their counterparts in very-low-income societies. The death of a civilian in the United States is no more and no less tragic than the death of an uprooted Afghani refugee on a hillside in Afghanistan. At a fundamental level, the wellbeing of every single human person is equally important.

Thirdly, the tools that strong nations wield in their interactions with very-low-income nations are powerful ones, and they can indeed cause much harm if they are not used wisely. This is so, even of many tools not generally considered harmful like the granting or denying of loans, or even the delivery of food aid (which can easily lead to the destruction of local production and trading mechanisms, and thus induce very damaging long-term dependencies).

And fourthly, in international interventions as in the practice of medicine, outcomes are often unpredictable. So people or governments contemplating any international intervention, particularly one that will have impact on the very vulnerable populations of low-income societies, would, under a Hippocratic-oath approach, be under an obligation to inform themselves about the potentially damaging side-effects of their intervention, and to take steps to prevent, to watch out for, and to seek to mitigate them. This obligation, she said, is particularly pertinent in the ongoing situation in Afghanistan.

Part 3: Theories of punishment

Punishment is the deliberate infliction of harm to the punished party (and thus stands in clear contravention of anything like a Hippocratic oath.) Two central problems with the punishment constituted by the present bombing campaign are the dimension of the harm being caused, and to whom this harm is happening.

The infliction of harm--or at the very least, a severe curtailment of rights-- is not a by-product of punishment; it is intrinsic to it. Because of this, any undertaking of punishment always requires a justification that is strong enough to over-rule society's general rule that agents within society should not deliberately cause harm to each other.

Ms. Cobban noted that there are two main ways of justifying punishment. It can be justified by making a convincing claim that the punished party or parties somehow deserve the harm. Alternatively, the infliction of punishment can be justified in terms of its planned outcome-- that is, it can be justified through a consequentialist argument.

She asked the audience how many people think we should think of, or hope for, the U.S. government as playing the role of interpreting and enacting God's will on earth. No hands went up. She then asked, even more rhetorically, how Americans could think of deliberately doing something equally as heinous as the action carried out by the terrorists. She noted that we don't punish rapists by raping them; and nor do most of them think we should punish the perpetrators of September 11th by going out and planning to kill 6,500 civilians. She thus concluded that most Americans do not, in fact, uphold a desert-based theory of punishment, but left open the possibility that we might uphold a consequentialist theory, instead.

She said that she found the most convincing justification of punishment to be the claim that punishment is justified if it can help to prevent the recurrence of attacks like that of September 11th. Prevention of recurrence can, she argued, be thought of as being achieved by punishment in three different (and not mutually exclusive) ways. It could be achieved through the incapacitation of individuals who are indicated by strong evidence to have been involved in the wrongful acts we're concerned with. In the case of domestic crime incidents, incarceration can involve arrest and detention of suspects pending their trial. This phase, we do not consider to be 'punishment' (though perhaps we should). But if found guilty at trial, wrongdoers can then be imprisoned for varying lengths of time-- or even executed--as the major part of their punishment. Both those sentences involve some incapacitation.

Secondly, prevention of recurrence could be seen as being achieved by sending a strong communication to all members of society that the wrongful act in question is indeed wrong, and will not be tolerated by society. Punishment can be seen as forcefully sending this message-- both to the perpetrarors, and to everyone else in society.

Thirdly (though linked to the communicative function), punishment can be seen as aiding recurrence prevention by deterring potential perpetrators other than the existing perpetrator, from proceeding with any plans they might have had to emulate his actions. If we don't adequately "punish" Bin Laden, and those who have been harboring him, this theory goes, then a rash of other terrorists may soon take heart from his apparent impunity from punishment and launch their own, similarly-styled attacks.

Still, in any theory of punishment, there remains a question as to who has the right to undertake this deliberate infliction of harm, and, she said, a still-unresolved question about how this infliction of harm is to be justified. Many theorists of punishment have tried to predicate the right to punish on a claimed right to undertake actions of self-defense. However, the right to self-defense is not a license to inflict any amount of harm one wants on another person or persons. Indeed, if it were, then the effect of repeated iterations of people acting in self-defense would be to fuel a rapidly escalating cycle of violence, such as we have seen over the past year in the Israeli-Palestinian dispute.

If we can justify a right to punish on a right to engage in acts of self-defense, she then surmised, we need to come back to the two constraints Professor Childress spoke of, in his presentation on the 'Just War' tradition, that limit the ways in which it is justifiable to act within a war (or, in this case, punishment) situation-- the two major jus in bello constraints regarding proportionality, and discrimination. These constraints seem not to have been adhered to by the present bombing campaign.

Conclusion

The bombings of Afghanistan, however-- and the massive military preparations that preceded them-- are seriously problematic at a number of levels. They have not abided by the jus in bello constraints of proportionality and discrimination. In particular, they have resulted in the infliction of widespread harm on Afghan civilians who bore no relationship to the Bin Laden networks-- harm which if even if it was not directly intended, was still fairly easily foreseeable (and was indeed foreseen by many international aid agencies.)

If we were to adopt a Hippocratic-oath approach to the question of the administration's actions, we could see that the Bush administration had some obligation to inform itself in advance about the possible and probable consequences for vulnerable populations of the military buildup after September 11th. And if it had done so honestly, it would surely have concluded that any large-scale deployment and subsequent employment of large-scale military forces ran a grave risk of causing unacceptable levels of harm to noncombatants in a society as recognizably vulnerable as Afghanistan's. There have always, after all, been an array of alternative policies that could have been pursued in order to further the investigation into the facts of the Sept. 11th attacks, and to bring to account of those responsible for them, without causing widespread 'collateral' damage to vulnerable Afghani civilians.