Torts and Wrongs

By far one of the best decisions I’ve made in my life is choosing to read Law at university. I understand there is a tendency for people to think that their interests or professions are somehow relevant to other topics, but I genuinely think that law can help people stop talking past each other. Tort law is essentially about bringing claims against people for committing wrongs; it is the civil version of criminal law.

Causation

By far the most I’ve written about on this blog has been about the causes of terrorism (and this should be last post on it in a very long time) – but everyone seems to miss the definition of what causation means. Fortunately, the English and common law courts have spent centuries talking about what constitutes a cause – and I think they’ve got it right. If you bring a claim against someone in the tort of negligence (for example), you need to establish not only that there was a breach of duty (of acting in a non-negligent way) but also that the breach of duty caused the loss you suffered. The general test has been stated many times but here is a recent restatement from Lord Phillips in Sienkiewicz v Greif [2011] UKSC 10 at [16]

It is a basic principle of the law of tort that the claimant will only have a cause of action if he can prove, on balance of probabilities, that the defendant's tortious conduct caused the damage in respect of which compensation is claimed. He must show that, but for the defendant's tortious conduct he would not have suffered the damage.

However, but for causation is not appropriate as the only test: but for the parents of the tortfeasor having sex and conceiving said tortfeasor, the tort would not have occurred. Of course we would not say in any real sense that the parents had caused the tort to occur. A lot of people seem to think this is an absurd example, so I’ll give another: a negligent driver speeds until he gets to a roundabout. He is then struck by lightning; but for speeding, he would not have been at the junction. This, again, is clearly not causally relevant. Hence, the law superimposes a test that where there is an informed, deliberate and free act, the chain of causation is broken (per Goff LJ in R v Pagget (1983) 76 Cr. App. R. 279 at 289). There are many cases which show this principle in action, so I’ll only give a few of my favourite criminal cases.

R v Pagget: the defendant had taken his ex-girlfriend hostage using a shotgun. The police were called to the scene where they were threatened and fired upon. In the ensuing gun fight, triggered by the defendant, the police shot the ex. It was held that the police were not responsible for the death of the hostage because their action was not free.

Saunders v Archer (1575) 75 E.R. 706: the defendant was a husband and a father who poisoned an apple in the hopes that his wife would eat it and die. The wife, without knowledge of the poisoning, gave the apple to their daughter who died. It was held that the husband was responsible for the death of the child because but for his act, the child would not have died. The wife’s act was not a break in the chain of causation because it was not informed action.

The reason English law does this is because it values individualism and responsibility for one’s actions. To suggest that someone else is responsible for an act you authored (i.e., you did it freely, deliberately and being informed), is to significantly undermine free will and sense of control over one’s life.  Professor Simester (Legal Theory, 1995) has explained this far better than I can hope to:

... if we so weaken the relationship between the consequence [of an act] and its author by indiscriminately sharing responsibility for the authorship of each consequence that sense of our individuality as people in a specific relationship to the world is much diluted

Simester is saying, in essence, we express our autonomous lives by being connected with the choices that we make. By separating out the connection between consequences and authorship (either by holding me responsible for acts I have not authored or not holding me responsible for acts I have committed), the ‘connection’ that makes real autonomy and individual responsibility is gone. Hence, free, informed and deliberate actions should be held to be the work of only the individual involved.  

Causation applied

So why is all of this relevant? Because pundits who have spent so much time talking about ‘causes’ do not have the wisdom of their Lordships in these cases. From Glenn Greenwald’s latest column:

if Person X walks up to Person Y on the street and spits in his face, and Person Y then pulls out a gun and shoots Person X in the head and kills him in retaliation, one can observe that Person X's spitting was a causal factor in Person Y's behavior without remotely justifying Person Y's lethal violence.

This is not the position English law takes and neither should it be the position of rational people. Lets ignore that Greenwald is attempting to apply this analogy to terrorism (this is wrong for three reasons I have already gone through), and just focus on the example given. Is Person Y’s action a free, informed and deliberate response? Yes, it is. Causation is not simply about ‘but for’ or ‘and then...’ And the fact that this individual has authored an action means he is the cause of his action. It is no use talking of ‘provocation’ because we do not allow provocations to vitiate causation (thankfully, since the Coroners and Justice Act (2009)).

Again, to make it painfully obvious that this is the right approach, consider an individual who is murdered after her partner finds out that she was having an affair. The action was free, informed and deliberate. Thankfully, like terrorism, it is not a course of action that people usually take (and thus reinforces the idea that these actions are not caused by anything other than by the individual). That this is the case was put poignantly by the Supreme Court of Alaska Hurn v Greenway 293 P.3d 480 (2013) (h/t The Volokh Conspiracy). Here are the facts of the case:

Simone Greenway and her friend Carrie Randall–Evans were dancing together in a suggestive manner and teasing Jeffrey Evans, Carrie’s husband, when Jeffrey left the room, returned with a pistol, and shot everyone inside, killing Carrie. He then shot and killed himself. David Hurn, the father of Carrie’s two minor children, sued, claiming that Greenway’s participation in the dance was negligent either because it breached her duty as homeowner to control her guests or because it created a foreseeable and unreasonable risk of violence.

But for the suggestive dancing, in this specific case, the murders of all the individuals would not have occurred. Does that mean the dancing caused the murder? The Supreme Court of Alaska held

We reject the idea that victims are responsible for the violence they endure in the home, and we will not blame them for their otherwise reasonable actions simply because those actions foreseeably result in violence.

The same applies to racists and terrorists; sure, a racists’ worldview means that but for the presence of the black person, he would not have assaulted him, but his action was free, informed and deliberate and he is the cause of that action. For the terrorist, granting that but for Western foreign policy he would not have acted that way (which I don’t grant), it is still not a cause of his actions. And unless we want to go around saying that the colours of people’s skin, the choices people make about their sex lives, the dances they happen to take part in are causes, we should resist Greenwald’s wide definition of causation.

And what if we dilute the claim that Greenwald makes – namely, that we should still listen to the racists and terrorists so we know the reasons they give for their actions? Absolutely not: it is irrelevant (and insulting) to start talking about the role of a battered woman, the role of a victimised minority or our foreign policy because it ignores that the action was caused by the defendant’s own action. Talk about the worldview that these people accept because, to arrogantly quote myself, ‘to be within the grounds of recruitment requires an aversion (or openness to an aversion) to a free society of consent’ – and as the empirical evidence shows, it has nothing to do with the reasons pundits like Greenwald give.

Responsibility for third parties

There is another reason why causation is important; it also explains why, when human shields are used, there is no responsibility attached to Western forces. But for the terrorists’ use of a certain area, it would not have been targeted (assuming, for now, the action is proportionate). It is unconvincing to argue that there was a free, informed and deliberate action because the situation matches R v Pagget. The IDF, acting in self-defence, targets an area from which a threat emerges and if it kills civilians, the responsibility should like solely with Hamas. Of course, states should take the presence of civilians into account when working out what is ‘proportionate’ (in the same way that the police in Pagget should not have used a rocket launcher to target the defendant) – but where they act proportionately, their action is not free. I am not going to spend the rest of this post explaining whether this was or was not the case in Israeli counter-terrorism operations because I merely want to justify the principles I’m talking about.

Perhaps one of the most perverse responses I’ve heard to statistics about coalition forces being responsible for a tiny minority of civilian deaths is that the insurgents and terrorists who cause the overwhelming majority of deaths would not have happened but for the Western invasion. The argument is essentially saying that ‘you unleashed the forces.’ That this is wrong should be clear (empirically, it is wrong to say that it was cause; normatively, it is wrong to blame actions authored by someone on an individual). But there are further cases which help elucidate why such a view is incorrect.

Lord Hope made clear in Mitchell v Glasgow City Council [2009] UKHL 11 at [15] that ‘the law does not impose a duty to prevent a person from being harmed by the criminal act of a third party based simply upon foreseeability.’ Accepting that it was foreseeable that people would be attacked is not enough to impose an obligation (this is partly for reasons give above about personal responsibility). Hence, in Hill v Chief Constable of West Yorkshire, there was no ‘general duty of care owed by the police to members of the public at large to apprehend an unknown criminal.’ The coalition forces in Iraq could have been responsible for the actions of third parties if they had control of them and negligently let them go. But because they did not, no duty let alone causation can be applied if we are to respect personal responsibility.

Blowback against Glenn Greenwald #1

I’ve spent many posts trying to explain why I don’t think foreign policy is really relevant in discussing the causes of terrorism. Without wishing to dwell on the point for too long, because I have addressed it, the language that one uses in these kind of discussions really tells you a lot. In essence, ‘explaining’ and ‘understanding’ terrorism amounts to excusing it. Glenn Greenwald in his most recent Guardian article states:

Basic human nature simply does not allow you to cheer on your government as it carries out massive violence in multiple countries around the world and then have you be completely immune from having that violence returned.

Human nature means that you are not free from people roaming your streets and beheading people. Perhaps I’m being overzealous, you can still say something human nature means x occurs (which, I’ll discuss below) and still say its wrong. And then came this exchange, pointed out to me by a friend:

@sesmithesq Yes, the measure of how civilized someone is is how meekly they acquiesce to US aggression & how much gratitude they express

— Glenn Greenwald (@ggreenwald) May 23, 2013

So not only is it human nature, those who refuse to respond by beheading people and blowing people up on their way to work are meek, acquiescent.  If you do respond in such a way, there can still be a measure of civility. Anyone who wishes to see a clear example of excusing terrorism need look no further than Greenwald’s words.  But even on the human nature point, Greenwald is flat out wrong. I’ve already shown many studies, polls and historical examples of why his position is untenable, but I thought I’d beat a dead horse by giving one more major example from the literature and then attacking the logic of the argument.

Iraq and the Surge

After the violence spiked in Iraq in 2006, the U.S sent a ‘surge' of U.S personnel and there was a radical reduction in violence. I’ve changed my mind on the effectiveness of the Surge three times – in fact you can even see it on some of the posts I’ve written. In one I describe the idea that the surge had a reducing effect on violence as a ‘frankly propagandistic account’ because it did not take into account the Sunni cooperation with the coalition and the U.S diplomatic effort in curtailing human capital for Al Qaeda (hereafter, the ‘November account’). In another I stated that the Surge ‘largely quelled violence’ in Iraq (hereafter, the ‘September account’).

I changed my mind those times because I was following the weight of the evidence. The evidence, I believe, has changed again and so must my view. It should be noted, however, that if either one is correct, Greenwald is wrong. If the Surge had no effect, the fact that violence fell radically means foreign policy is mostly an irrelevance. If the Surge did have effect, then foreign policy is relevant but in the opposite way that Greenwald and his friends claim. In quite possibly the most comprehensive article on the Surge, Biddle, Friedman and Shapiro (2012, International Security put forward a new ‘synergistic’ model. They explain (at p.10-11):

Without the surge, the Anbar Awakening would probably not have spread fast or far enough. And without the surge, sectarian violence would likely have continued for a long time to come—the pattern and distribution of the bloodshed offers little reason to believe that it had burned itself out by mid-2007... [However,] without the Awakening to thin the insurgents’ ranks and unveil the holdouts to U.S. troops, the violence would probably have remained very high until well after the surge had been withdrawn and well after U.S. voters had lost patience with the war.

The evidence they provide for this position is incontrovertible: they utilise the declassified figuress of ‘significant activities’ (essentially all military and insurgent activity in Iraq by location, time and date), primary accounts of individuals involved and the Iraq Body Count casualty figures. They then map out the differing explanations and see if they match the pattern that was expected. The November account emphasises the role of the Anbar Awakening (Sunnis agreeing to fight Al Qaeda). Biddel et al explain that this is not the right view because between 2004-6, the Sunnis did try to reach out to the U.S. Indeed, the U.S even made payments – but each of these efforts failed because the Sunnis were not able to garner protection, militarily, from the coalition which meant a relentless onslaught by Al Qaeda. And ‘without this protection [that the Surge could provide], none of these efforts proved able to survive and spread in the face of insurgent counterattacks’ (p.19).

This goes to show why the November account cannot, by itself,  explain the decline in violence but this does not vindicate the September account. The Sons of Iraq (i.e., Sunnis who took part in the Anbar Awakening  by joining with coalition forces) are irrelevant to the September account; all that was important was American boots on the ground. This would mean that before Sons of Iraq involvement, the Surge should have worked to reduce the violence. Except thats not what we see in the data; these are a random few data points from the study (at p.29):

Each graph charts the rate of violence (y axis) over time (x axis) in different areas of operation. The dotted line is when the Sons of Iraq began involvement in those provinces with coalition forces. The data seems fairly clear: the Sons of Iraq did have an impact. As Biddel et al note, ‘the average rate of reduction before SOI standup was 2.5 percentage points per month; the rate after standup was 5.8 percentage points per month, or roughly two and a half times greater’ (p.28). (Incidentally, this is the kind of analysis that no blog can provide; simply mapping figures of troop numbers and fatalities as Loonwatch has done is the kind of crude ‘blog economics’ demeans rigorous academic study).  

But importantly, the SOI involvement was only made possible because of the Surge and the protection the Sunnis obtained. Furthermore, their involvement meant that the military component could properly work because it reduced the combatants the U.S had to fight and the Sons of Iraq could give them information on hideouts, positions and the locality. Neither the September account nor the November account are therefore sufficient, but both are necessary. This explains why much of the academic literature shows robust results in favour of the September view. Here are just two examples from my Twitter feed:

“The empirical results show that troop levels and other policy changes associated with the surge have a significant effect on reducing levels of civilian violence.”  - ‘Relative peace in Iraq : a policy evaluation of the surge in troop levels’ by Smith (2009)

“Using new panel data on development spending in Iraq, we show that violence reducing effects of aid are greater when (a) projects are small, (b) troop strength is high, and (c) professional development expertise is available.”  - ‘Modest, Secure and Informed: Successful Development in Conflict Zones’ by Berman et al (2013)

There is no need to deny these studies  according to the synergistic model – they make complete sense. But the empirical record must also take into account SOI stand up points. Which brings me back to the point of this post: U.S involvement was a significant part of the reduction in violence in Iraq. Again, this really shouldn’t be surprising: the whole point of these actions is to deter and reduce violence. There is no ‘blowback,’ the people of Iraq aren’t rushing to kill us all: the opposite occurred. We increased troops and involvement – and the Iraqis were better for it (in more ways than just a reduction of violence). Perhaps Greenwald thinks that the Iraqis, particularly the Sons of Iraq who experienced Al Qaeda’s brutal regime, are meek and acquiescent?

The faulty logic of blowback

The logic of blowback appeals to human intuitions: you’ve been hit, so why don’t you hit back? But there is no way that those human intuitions can be applied to modern day terrorism. I have already shown Palestinians (here), Pakistanis (here) and Iraqis (above) do not respond by blowing people up nor supporting it – so it clearly is an empirically false statement. But even the  logic of it is faulty for three reasons. Firstly, the bulk of these grievances are caused by the terrorist groups themselves.  I can’t be bothered to write it out again, so here’s what I’ve previously written:

According to a study by King’s College London looking at civilian deaths from 2003-2008 concludes that of the 92,000 civilians deaths recorded by Iraq Body Count, 12% were attributable to coalition forces. 74% were carried out by “unknown perpertrators” described as “are those who target civilians (i.e., no identifiable military target is present), while appearing indistinguishable from civilians.”... [In Afghanistan,] civilian deaths caused by pro-government forces decreased by 24% from 2009-2010, making them responsible for 15% of civilian casualties.

And yes, those numbers have barely changed and are still accurate in 2013. So why not attack the Taliban or Al Qaeda? Perhaps this is what the Sons of Iraq did when they turned to the U.S - against Al Qaeda? I don’t think so. As Loonwatch (without realising what this idea entails) helpfully reminds us: the support for attacks against civilians is roughly the same around the world (and if anything, lower in Muslim-majority countries). It seems being a victim of terrorism, or a nation which is the victim of terrorism has little to do with supporting or carrying out violence. In fact, there are many examples (that I haven’t already mentioned) of individuals feeling aggrieved and not becoming violent: families of homicide victims and support for the death penalty (see research here and here); the Tibetans whose rates of violence match their oppression (see a ridiculous attempt to make the opposing argument here); the black communities after the reconstruction period etc. etc. Even if we step back – away from terrorism – being anti-American is not related with foreign policy. In the seminal The Political Economy of Hatred, Glaeser (at p.46) rehteorically asks ‘why would 34% of French but only 27% of Vietnamese have an unfavorable opinion of the United States?’

Secondly, even if we just focused on the minority of Western-linked grievances, terrorism involves attacking innocent third parties. Even if you want to grant (which I don’t), that individuals become violent when they become aggrieved – why would you attack someone innocent? This is why the human intuition point should strongly be countered: you do not attack an innocent civilian (be it man, woman or child) because someone who you consider guilty attacked you. To be fair, there is a common response:  there is no other way for them to respond. This is commonly given in the context of Israel – they have nothing but rockets and suicide jackets and so they cannot target the military. Leaving aside for the moment that there may be ways of attacking military targets, this is still faulty. It is faulty for terrorist groups because they make it their modus operandi to target civilians. They have time to think about their best method and they choose terrorism. Why does this mean the argument is faulty? Because the empirical record is emphatic that terrorism does not work:

This graph is taken from a lecture by Peter Neumann (at 5:32) and is representative of the academic literature (Abrams (2006), Harmon (2011) and Neumann (2008)). It might be said that this is an academic, not emotional/real response – but that has already been shown to be a ridiculous argument by the empirical record: the overwhelming majority of people can feel aggrieved, and their emotional response is not one of terrorism. I noted how this is precisely what happened after Operation Cast Lead in 2008-9 – and, surprise surprise, humans continue to have morals after Operation Pillar of Defense in 2013.

Thirdly, the logic is flawed because it will leave us paralyzed from doing good. The Woolwich terrorist said that ‘I am fed up with people killing Muslims in Afghanistan’ (see the first element above). I have already spelt out the benefits of liberation of Afghanistan but I want to add two things. Why are these Islamist terrorist more aggrieved than the local population? As Bergen notes, ‘favorable views of the Taliban in polling across Afghanistan over the past several years are consistently no more than 10 percent.’ Second, the government we are working with to fight against these unpopular terrorists is a democratically elected government which has the support of its people (75% of whom give the central government a positive assessment). We needed to carry out the liberation of Afghanistan – not just for the eradication of Al Qaeda’s training ground but the liberation of the Afghan people. If (and as should be obvious by now, this is only an if), there is a response from those who seek to maintain these Talibanised states, then we should accept it and continue to fight against it.