From FPRI:
RISK, MILITARY ETHICS AND IRREGULAR WARFARE
By Colonel Tony Pfaff
PROLOGUE
A US Army Non-commissioned officer reported in a letter to
commentator George Will that during one patrol his unit came
under heavy small arms fire and rocket propelled grenades
(RPGs). In response, he requested artillery be fired on the
enemy's position. His higher headquarters denied the request
because of the proximity of Afghan civilians to the
fighting. Unable to continue the mission, he requested the
supporting artillery unit to fire smoke rounds to conceal
the unit's movement out of the engagement area. The
headquarters granted this request but even though the
chances of injury from a smoke round are remote, the
artillery unit had to deliberately fire one kilometer off
the requested position for fear of injuring civilians. As
result, the rounds were ineffective at concealing the unit's
movement.[1]
In another example, a higher headquarters denied a Marine
patrol permission to attack an apparent insurgent group
emplacing roadside bombs in Afghanistan. The Marines not
only observed that the Afghans possessed equipment
associated with improvised explosive devices (IEDs), they
had also recently intercepted a radio transmission
indicating insurgents were planting such devices in the
area. However, since the insurgents were planting the IEDs
in an area close to civilian populations and the only way
the Marines had available to intervene--machine guns and
helicopters-would have almost certainly caused collateral
damage, the higher headquarters denied their request to
attack the insurgents. Frustrated, the lieutenant in charge
angrily exclaimed, "I thought we were going to play by big
boy rules."[2]
Had they been playing by the traditional rules, the sergeant
would have received supporting fire and the Marines would
have been permitted to fire on the insurgents, even if both
courses of action meant risking noncombatant casualties. As
long as they did not target noncombatants and used just the
amount of force necessary to break contact and kill the
insurgents planting the IEDs, their request for additional
fire-power would be within the scope of traditional military
ethics. In fact, this emphasis on preventing collateral
damage in many of the counter-insurgent fights in
Afghanistan and Iraq has drawn a great deal of criticism
precisely because of the excessive risk soldiers are often
called upon to bear.[3]
INTRODUCTION
Soldiers, of course, are called on to bear risk in service
to the country. In fact, bearing that risk is an important
part of the Soldier's identity. In 2000, Don Snider, John
Nagl, and I wrote a monograph on Army professionalism that
argued this point, noting that, in part, risk-taking is an
inherent and essential part of what it means to be a
soldier. [4] Written in the context of "radical" force
protection policies in place during peacekeeping operations
in the Balkans, we argued that such policies not only
undermined soldier effectiveness, they were also immoral.
Forcing the choice between undertaking missions and
accepting personal risk forced soldiers to place that risk
elsewhere: either noncombatants or the mission. Radical
force protection policies forced them to place it on the
mission, which they did not undertake if there was the
possibility of harm to themselves. This situation
effectively turned soldiers into technicians and
bureaucrats-a situation just as absurd as the excessive risk
taking described above.
What we did not fully discuss in that paper was the central
role decisions about risk play in military ethical decision-
making. Traditional military ethics[5] accepts that soldiers
have a reasonable interest in taking the least risk possible
when conducting operations. However, when that risk is
transferred to noncombatants, these same ethics require
soldiers to observe the constraints of proportionality and
discrimination to limit how much risk they transfer. In this
view, assuming extra risk on the part of soldiers is
obligatory, at least up to the point of mission failure.
Since the limits of risks are identified with the
requirement to accomplish missions, preserving lives of
soldiers is experienced more as a concession to the
requirements of military necessity and not an obligation
itself.
By conflating preserving soldiers' lives with military
necessity the traditional view of military ethics sets up a
false dilemma where one must choose between non-combatant
lives, which have value, and soldiers' lives, which do not,
at least not apart from military necessity. It is no wonder
that many soldiers see ethical decision making in war-time
as the application of abstract principles, divorced from the
realities of fighting and winning those wars. This
abstraction is especially apparent in irregular warfare,
where the separability of civilian and military targets that
underpins the traditional view, blurs.
The traditional view requires Soldiers to always subordinate
their lives to accomplishing the mission and avoiding harm
to noncombatants (friendly or enemy) when choosing where to
transfer risk. This dynamic denies soldiers their right to
life and absolves the state of its obligations to protect
all its citizens. In the context of irregular warfare, where
civilians and civil society are increasingly inseparable
from war fighting, this subordination forces combatants to
assume all the risk since transferring it to civilians is
co-extensive with transferring it to the mission. Resolving
the absurdity requires reframing the problem. Rather than
conceiving military ethical decisions as the observation of
restraints on the use of force to meet obligations toward
enemy civilians, the central question of military ethics is
better described as where does one place risk in the face of
certain threats: combatants, non-combatants, or the mission.
THE TRADITIONAL VIEW: MILITARY NECESSITY AND PROPORTIONALITY
Military ethics begins with the utilitarian imperative to
accomplish missions. The logic is fairly simple. If one's
cause is just, one maximizes the good by achieving it. Thus,
actions that lead to victory or avoid defeat are not just
permissible; they are obligatory. Given the state's moral
obligation to protect its citizens,[6] military operations
conducted in their defense are prima facie obligated, even
when conducting those operations exposes combatants to
harm.[7] Thus, in what I will refer to as the "traditional
view," by taking on the role of soldier, one assumes the
state's obligation to protect its citizens. By taking on
that obligation, one further assumes the associated risks,
including the risk of death.
On the surface, military necessity would appear to permit
combatants wide latitude in mitigating risks to themselves.
Military necessity only requires them to choose courses of
action that maximize the chances for victory and minimize
the chances of defeat. Since preservation of soldiers' lives
is obviously closely linked to an army's ability to wage
war, the utilitarian ethics of military necessity would seem
to permit soldiers to transfer almost all the risk of war
fighting to the enemy-including enemy civilians. This
permission, of course, would only hold if transferring risk
to civilians were the best way to achieve the military
objective. However, given the obvious and close correlation
between preserving combat power and battlefield success, it
would be difficult to question the judgment of a commander
who chose the least risky course of action on the basis of
military necessity.
It is important to note that military necessity would also
require soldiers to transfer additional risk to themselves
if that were the best way to accomplish the mission at hand.
In fact, many examples of current counter-insurgency (COIN)
doctrine require very little-if any-transfer of risk to
noncombatants for fear of undermining efforts to win "hearts
and minds."[8] Thus, in regard to risk, military necessity
requires only that the commander take into account
operational considerations that maximize the chances of
mission success or minimize the chances of mission failure.
What it does not require is that he take into account
combatant or non-combatant lives beyond how they influence
those operational considerations. Thus military necessity
permits significant transfer of risk to enemy noncombatants.
It is worth noting, however, that it does not permit the
total transfer of risk. The utilitarian nature of military
necessity rules out courses of action whose outcomes result
in more harm than good. This restriction, referred to as
proportionality, requires soldiers to limit the harm to
civilians and civilian infrastructure they cause relative to
the value of the military objective. The value of the
military objective is measured against its contribution to
the moral objective of war: to establish a better state of
peace than the status quo ante bellum.[9] Thus
indiscriminate (or even insufficiently discriminate) acts
would be usually be unjustified because the harm they cause
undermines the chance for a stable peace
Because the proportionality requirement restrains the amount
of force soldiers are permitted to use, it entails soldiers
must take additional measures to limit the transfer of risk
to noncombatants. To the extent those measures impede
mission accomplishment, soldiers are then obligated to
assume that risk themselves. Generally speaking, soldiers
will prefer to use weapons that maximize the distance
between them and the target in order to lower their exposure
to enemy fire. The greater the distance, the less certain
friendly forces can be regarding specific locations of enemy
troops. Therefore, greater force, usually in the form aerial
or artillery bombardment, is required to destroy those enemy
forces. Advanced surveillance equipment such as satellites
or unmanned aerial vehicles can overcome some of this
uncertainty. Further, precision-guided munitions can limit
to some extent the amount of force required. However, as
combat from Iraq to Afghanistan to Gaza has shown, these
weapons cannot resolve uncertainty to the same degree that
boots on the ground can. Thus given the requirement to
restrain force, combatants may have to expose themselves to
greater risk in order effectively attack the enemy
objective.
Still, this level of risk is fairly low and military
necessity permits the transference of a great deal of risk
to noncombatants. Given the difficulty in placing a specific
value on a particular objective or the cost to noncombatant
lives in advance of the operation, soldiers in all but
extreme cases can reasonably argue that as long as they
observed some restraint and took some risk, they met the
conditions specified by military necessary and
proportionality.
DISCRIMINATION AND NON-COMBATANT IMMUNITY
The traditional view also requires soldiers to discriminate
between legitimate and illegitimate targets when employing
force. This requirement also typically draws its
justification from the state's obligation to protect its
citizens from harm. Most traditional views of military
ethics define war in terms of some violation of a state's
political sovereignty or territorial integrity.[10] These
"states rights" are not themselves morally worth defending,
but derive their value to the extent their preservation
secures the rights of citizens to life and liberty. Because
these rights are universal, they apply equally to friendly
and enemy noncombatants and restrict the kind of harms
soldiers may commit. This restriction, referred to as
noncombatant immunity, requires soldiers to intend not to
harm noncombatants when employing force against otherwise
legitimate military targets.
Discrimination does not, however, directly entail a
requirement to assume additional risk beyond what is
required to accomplish the mission. What requires soldiers
to assume such additional risk are those instances where
efforts to discriminate will be imperfect and that no matter
how precise combatants try to be, noncombatants will be
harmed. In those instances, soldiers must take additional
measures to mitigate the risk to noncombatants, even if that
means assuming additional risks themselves.
To illustrate this point, Walzer cites as an example the
efforts of a Soldier in WWI whose mission was to clear
cellars of enemy combatants in a recently seized urban area.
In doing so, he took the additional measure of shouting out
a warning in order to give noncombatants the opportunity to
identify themselves and thus avoid harm. Walzer's point here
is that it is not sufficient to simply not intend to harm
noncombatants; rather, one must intend not to harm
noncombatants.[11] Had the Soldier simply not intended to
harm noncombatants, then he would have been under no
obligation to provide a warning. However, simply throwing
grenades down cellar doors hardly seems like an act of
discrimination, whatever the he might have intended. Thus,
even though giving such a warning would give enemy soldiers
time to react and place him at greater risk, he was
obligated to offer it anyway. Georgetown professor Dave
Luban articulates the objection this way:
"Knowing that an attack will hit both military and
civilian objects, the soldier must take care to
intend only to hit the military target, not the
civilians. That seems like an absurd and dishonest
mental game. How do you avoid war crimes? Close
your eyes, take a deep breath, concentrate hard,
and refocus your intentions. Then go ahead and do
what you were going to do anyway."[12]
To avoid absurdity and dishonesty one must take action to
discriminate, even if that requires additional risk. Of
course, as noted above, that risk is still limited by the
fact combatants are not obligated to conduct operations in a
way they will knowingly fail or not be able to continue the
fight. But even this limitation will not resolve the
absurdity the excessive risk taking described by the NCO and
Marine lieutenant above.
DIFFICULTY FOR THE TRADITIONAL VIEW
Given the standard view, it is not hard to see why the NCO's
and Marine lieutenant's higher headquarters withheld
supporting fires and smoke as well as the permission to
attack the insurgents planting IEDs. Military necessity
demands concern for the mission. The application of
proportionality and discrimination, however, demand concern
for noncombatants. While commanders are expected to conserve
soldiers' lives as a matter of military necessity, the
demands of irregular warfare-where support of the local
population is critical to mission accomplishment-place
almost all the risk associated with conducting operations
onto the soldier.
The difficulty for the standard view is that when choosing
where to transfer risk-mission, enemy civilians, or
themselves-combatants must always choose to transfer risk to
themselves, except when the mission itself is at stake. By
placing friendly combatants lowest in priority in terms of
risk avoidance, one effectively denies them the right to
life. By denying them the right to life, they are denied the
protection of the state they are defending. This view is
explicitly held by Walzer who notes:
"The immediate problem is that soldiers who do the
fighting _lose the rights they are supposedly
defending. They gain war rights as combatants and
potential prisoners, but they can now be attacked
and killed at will by the enemy. Simply by
fighting _ they have lost their rights to life and
liberty _ and they have lost it, even though,
unlike aggressors states, they have committed no
crime."[13]
Israeli philosopher Asa Kasher has famously challenged this
feature of the traditional view. In an article co-written in
2005 with then Major General Amos Yadlin, Kasher remarked:
"the duty to minimize casualties among combatants during
combat is last on the list of priorities _ we reject such a
conception because it is immoral."[14] The authors argued
that the state's obligation to protect its citizens from
harm-which justifies the use of force in the first
place-extends also to soldiers. While recognizing that
soldiers do assume risks friendly civilians do not, they
argue that soldiers still retain their rights to life. The
state may be justified in putting his life at risk because
of its obligation to defend all citizens, but the obligation
to protect the soldier to the extent commensurate with his
duties does not go away.
Further, the authors argued that the state has no such
obligation to protect enemy noncombatants, especially if it
means assuming additional risk on the part of friendly
combatants. While they agree that enemy noncombatants may
not be directly targeted, they argue it is immoral to ask
friendly combatants to take additional risks to protect
those civilians outside the state's effective control. This
restriction follows from the fact that the social contract
forbids the state from jeopardizing the lives of its
citizens unless it serves the defense of other citizens. In
their formulation, minimizing injury to the friendly
noncombatants is a higher moral priority to a military than
minimizing casualties to its own troops. However, force
protection is a higher priority than minimizing casualties
to enemy civilians not under the military's control.
This view was apparently influential in shaping the way the
Israeli Defense Forces (IDF) conducted operations in Gaza in
2009. According to press reports, Israeli soldiers were told
to "protect themselves first, civilians second." According
to one report, if they "are told to reach an objective, they
first call in artillery or airpower and use tank fire."[15]
Such tactics minimized the risk to soldiers, but also
limited their ability to discriminate among targets, which
typically increases the risk to non-combatants. Given that
more than 1300 Gazans reportedly died in the conflict,[16]
it seems that these practices did represent a significant
transfer of risk to the noncombatants, which would have only
been permitted under the traditional view had the IDF taken
whatever measures they could to discriminate up to the point
of mission failure.
The difficulty with Kasher and Yadlin's view is that it
privileges nationality (or at least residence) when
determining where the burden of risk should lie. They argue
that what determines the state's obligation to protect-or at
least avoid harm-is whether the state has effective control
over the territory in which the combat operations are taking
place. If the state has effective control, then it is has
sovereignty over that territory. If the state claims that
right to sovereignty, then it must respect the rights to
life and liberty that justify that claim to sovereignty in
the first place. Respecting those right includes exercising
that sovereignty to protect those persons under its control,
which is the fundamental feature of the social contract.
Where the state does not have sovereignty, then it has no
obligation to protect.
To illustrate why the absence of sovereignty does not entail
the absence of the obligation to avoid harm, Walzer and
Avishai Margalit described a situation where Lebanese
Hezbollah (LH) forces capture an Israeli kibuttz. They
described four different scenarios where the IDF is
confronted with liberating the kibuttz. In one scenario LH
is holding Israeli citizens hostage and using them as human
shields. In this case, under Kasher and Yadlin's model,
preserving the lives of IDF personnel would come second to
preserving the lives of the civilians thus limiting the
amount of risk they could transfer to either the mission or
to the noncombatants.
In the next scenario, there are a number of "well-wishing
volunteers"-supportive pro-Israeli non-nationals. Though not
Israeli citizens and though not in territory effectively
under government control, Walzer and Margalit argue that it
seems intuitive that their nationality should not weigh
against them when soldiers determine where the burden of
risk should lie. They should assume the same additional risk
they would provide the Israeli citizens the volunteers
support.
They then alter the scenario and rather than hostages, the
kibbutz is populated by anti-Israeli protestors from abroad.
Here the only thing that distinguished this population from
the previous population was their attitude towards Israel.
However, this discriminating criterion would not be applied
to the population of Israeli citizens. Had the Israeli
citizens in the first scenario been supporters of LH rather
than hostages, the obligation to take extra risks would
still be in place. In Kasher and Yadlin's view, it would not
matter if the Israeli citizens in the kibbutz supported the
LH who had taken over, the soldiers' obligation to protect
them would still hold.
The next scenario involved Lebanese citizens who were bussed
in to act as human shields. In this case, they do not
support the LH or Israel. They just simply want to return to
their lives in Lebanon. Here again, the only thing that
distinguishes this population from the ones for which
additional risk would be obligated is their nationality.
In the first case, the rules the IDF already plays by -
soldiers assume additional risk in order to protect friendly
civilian lives. In the second example, it seems counter-
intuitive to argue these pro-Israeli supporters enjoy less
consideration than the Israelis under similar circumstances.
If neither nationality nor presence under effective control
affect decisions about risk in the first two examples, then
it is not clear why they should in the latter two, since
these cases are differentiated only by attitude toward
Israel. As Walzer and Margalit note:
"(b)y wearing a uniform, you take on yourself a
risk that is borne only by those who have been
trained to injure others (and to protect
themselves). You should not shift this risk onto
those who lack the capacity to injure; whether
they are brothers or others. The moral
justification for this requirement lies in the
idea that violence is evil, and that we should
limit the scope of violence as much as possible.
As a soldier, you are asked to take an extra risk
for the sake of limiting the scope of war. "[17]
Here we have a clash of intuitions. Walzer and Margalit are
right: liability to attack depends on the threat one
represents, not one's nationality or residence. But Kasher
is also right: soldiers do have a right to life and an
expectation that the state will take measures to protect
them as well.
So, while the imperative to accomplish missions obligates
soldiers to take risks, a broader view of military ethics
must also consider the obligation the state has to preserve
their soldiers' lives and well-being. The standard view
cannot accommodate both these intuitions. Thus we must
either continue to require Soldiers to bear all the risks of
war fighting or revise the standard view.
IRREGULAR WARFARE AND RISK
In the kinds of conventional wars that gave rise to the
rules associated with the standard view, the risk is largely
manageable. As noted before, soldiers are not required to
assume so much risk that the mission fails or that they
would not be able to continue the fight. This limitation
provides commanders sufficient latitude to balance mission
requirement and soldiers' lives because it gives them
somewhere else to displace the risk associated with a
particular operation. While they are not permitted to
directly target noncombatants, they can construct the
operation to take advantage of long-range fires and other
protective measures, even if that means displacing some
risks to noncombatants.
However, because of the close association between the
support of the local population and victory, displacing that
risk onto noncombatants in irregular warfare often places
the mission at risk.[18] Further, irregular adversaries'
ability to mask their presence among the population gives
them an advantage over forces that cannot. This same ability
allows them to distinguish opposing forces, which further
places those forces at a disadvantage. This asymmetric
ability to distinguish one's foe not only offsets the
advantages associated with soldiering, it ties that offset
to the presence of civilians on the battlefield.
Thus it is not simply the case that support of local
populations is critical to winning irregular wars; rather,
it is the case that the population represents a contribution
to enemy capability. The fact that irregular adversaries can
hide among the population while at the same time targeting
counter-insurgent forces, suggests that the presence of
civilians has a direct and positive impact on the enemy's
ability to fight. Additionally, when it is the case that
civilians actively support the insurgent cause, that
connection to enemy capability is further entailed. Thus in
irregular warfare, civilians' contribution to the enemy's
ability to wage war is not easily separated.
It is this close connection coupled with the requirements of
the traditional view that place soldiers in the absurd
positions described above. To avoid such absurdities, what
is required is a view of military ethics that permits
commanders to displace risk on something other than soldiers
while at the same time upholding the principles of
proportionality and discrimination as articulated above.
Because civilians and civil society are closely linked with
the enemy's ability to fight, it makes sense that some of
the risk associated with that fight should be transferred to
them, at least when the choice is transferring it all to
friendly combatants. However, arguing that civilians should
bear risk because of their central role in determining enemy
combat capability does not necessarily entail greater
permissions for soldiers to conduct operations in such a way
civilians would be harmed. Kasher and Yadlin are right, the
state has an obligation to protect all its citizens,
including soldiers. But Walzer and Margolit are also right:
the state should not implement such protection in a way that
violates the rights of noncombatants: friendly or enemy.
Thus, the question to answer when determining where the
burden of risk should lie is: how would we handle that
threat if it manifested within our own populations? Looking
at military ethical situations this way requires us to
reframe the problem from the simple application of rules
associated with military necessity, proportionality, and
discrimination to balancing risk in a way that respects the
rights of combatants and noncombatants alike.
RESOLVING THE MORAL PROBLEM: ENEMIES AND CRIMINALS
When enemy combatants and civilians are difficult to
separate in the manner described above, it is often because
there some sort of order that supports the activities
associated with civil society. In conventional combat zones
that order is typically suspended as combatants wrestle over
who controls that particular piece of land. However,
insurgencies usually take place in the context of a larger
social and political order to which the insurgents either
object or exploit and which counter-insurgent forces are
presumably trying to defend. In fact, these sorts of
irregular conflicts are not so much about destroying a
particular order, but gaining control over it.
This point suggests we have to reconsider what sort of
adversary irregular adversaries are. Rather than an
existential threat to the state, they are an existential
threat to the citizens of the state. This distinction is
important. In the kinds of conflicts represented by Iraq,
Afghanistan, and Gaza the immediate threat is not to the
state but to its citizens. However, the standard view rests
on the idea that war is only justified in the face of an act
of aggression defined as a violation of political
sovereignty and territorial integrity. That kind of
aggression, however, is not what soldiers typically confront
in irregular warfare. In these conflicts their aim is to
maintain a particular order, not destroy it.
Over time this could of course change. And when it does, the
sort of ethics reflected in the standard view would be
appropriate. However to the extent irregular adversaries
represent a threat to individual rights but not the
corresponding state's rights, they are then best conceived
as criminal. While they do not directly threaten those
state's rights, their threat to individual rights still
places a burden on the state to protect them.
In 2001, I argued in the monograph Peacekeeping and the Just
War Tradition, that the distinction between war fighting and
law enforcement was essential to understanding soldiers'
ethical obligations in irregular conflicts. This distinction
is well-captured in the actions of a joint police-military
patrol undertaken during the 1992 Los Angeles riots, where
Marines and police responded to a domestic disturbance. When
they arrived at the apartment where the disturbance
occurred, the police knocked on the door and announced
themselves. The response was a shotgun blast through the
door that fortunately missed the officers. As the police
readied to enter the room, they yelled to the Marines,
"Cover me!" In response, the Marines fired approximately 200
rounds through the door. Fortunately, no one was
injured.[19]
Though both military and law enforcement organizations
instruct their forces to always use the least force
necessary, this example shows they have very different
conceptions of what necessity entails. In the police view,
it would be better to develop the situation and ascertain
whether there were nonviolent ways to resolve it. As far as
the Marines were concerned, any degree of proportional force
that eliminated the threat would be appropriate, even if it
put civilians at some risk.
The different reactions are due to the way each perceives
and is trained to deal with threats. To the police, the
threat is a criminal they must apprehend in order to
minimize disruption to society. Since the use of violence
represents a further disruption of the peace, police are
always looking to use the least force possible. But soldiers
are trained to defeat enemies, who must be killed-or at
least captured-if there is to be peace. They are always
looking to use the most force permissible.
These different models provide soldiers with different
conceptions of the use of force they can employ to meet
their obligations to the mission, noncombatants, and
themselves. By understanding there is more than one context
in which to apply military force, we reframe the problem.
Rather than simply asking what the rules permit, we ask
first how do these rules apply given the relevant concept of
necessity. In this view, military necessity, proportionality
and discrimination still matter but their application
changes depending on whether the most force permissible or
the least force possible applies. When that context changes,
it is not the rules that change, simply where the burden of
risk lies. Further, this view allows us to recognize that
force protection is itself a moral obligation that
commanders must consider when determining that burden of
risk.
The following are revisions to military necessity,
proportionality, discrimination, and force protection
suggested by this analysis.
Proportionality: When calculating proportionality, soldiers
fighting wars are required to weigh the value of the
military objective and the harm done to achieve it against
establishing a better state of peace following the cessation
of hostilities. Soldiers combatting irregular adversaries,
on the other hand are obligated to weigh their actions arm
against the requirements to maintain, if not strengthen, the
current order. This point means that soldiers must not only
consider the consequences of the violence they may employ,
but also of non-violent actions that nonetheless disrupt the
peace, such as mass detentions or excessive restrictions on
movement.
Non-combatant Immunity: When discriminating against
legitimate and illegitimate targets, soldiers fighting wars
must intend to not harm non-combatants. However, as long as
they take actions to limit that harm, they are still
permitted to act, even if they know some civilians may be
harmed. Soldiers combatting irregular adversaries, however,
must further intend not to place civilians at risk. This
point does not suggest that police are never permitted to
undertake actions where civilians may be harmed. For
example, they may undertake a high-speed car chase even
though there is always the chance that they may lose control
of the car and inadvertently harm a civilian. The difference
here is that the harm is not only unintended, it is
unforeseen.
Additionally, as Kasher and Yadlin would have to argue, as
soldiers gain more control over the ground they occupy, they
take on the obligation to protect civilians from harm in the
same way police do.[20] This latter condition assumes that
soldiers can act as police in the given area of operations.
Clearly, Hamas's control over Gaza prohibited the IDF from
doing that. In such cases, soldiers may engage the adversary
under the enemy model, but only in order to establish a law
enforcement capability as rapidly as possible.
Force Protection: As noted earlier, soldiers fighting
enemies are obligated to take risks to minimize harm to non-
combatants, though these risks are limited by the
requirements of force protection and mission accomplishment.
This obligation to accept risk also holds in irregular
conflicts. However, when fighting irregular adversaries,
soldiers are limited in how much risk they can transfer to
noncombatants by the requirement to preserve the peace. This
point does not suggest that soldiers are obligated to go on
suicide missions. It does mean if the choice is to forego
harming civilians or undertaking a particular course of
action, soldiers must choose to forego that course of
action. This point does not suggest that they must forego
achieving their objective; just that they must find another
way to do it. Police, for example, would let a criminal,
even a violent one, escape before firing into a crowd of
civilians. They would not, however, stop their pursuit of
that criminal nor their efforts to prevent future criminal
acts.[21]
CONCLUSION
By viewing military ethical decision-making through the lens
of balancing risk as opposed to simply applying rules, we
can resolve the conundrum created by the application of the
standard view in non-standard combat environments. Further,
we can do so and still respect the basic rights the standard
view attempts to uphold.
In resolving the conundrum, it is important to be clear that
it does not follow from this analysis that noncombatant
casualties are never permitted when fighting irregular
warfare. What follows is that when determining how best to
accomplish military objectives soldiers must always prefer
those actions that avoid risk to noncombatants. This
preference is required to uphold the civil order soldiers
are trying to defend. When they cannot avoid that risk, they
are permitted to act, but must take extra measures to limit
that risk to noncombatants, just as in regular warfare they
must take extra measures to limit harm.
In this view, then, the NCO should have received accurately
placed smoke to allow him to break contact. The chance of
harm from a smoke round is so limited that it is reasonable
to argue that any risk, much less harm, is unforeseen. The
Marine Corps lieutenant would probably not have been
permitted to engage the insurgents planting the IEDs with
machine gun fire and helicopter gunships just as police
would not be permitted to fire into a crowd, even if they
knew that would prevent a violent crime.
What he should have the option to do is kill or detain the
insurgents if he can do so without placing civilians at
risk. Additionally, he should also have the option to avoid
running convoys where the IED is planted until it could be
safely dismantled. Just because he is not permitted to place
risk on noncombatants does not mean his Marines have to
accept that risk as well. He should be permitted to
reconceive the mission so that the ultimate
end-strengthening the order represented by the Afghan
government-is achieved.
----------------------------------------------------------
Notes
[1] George Will, "U.S. tactics in Afghanistan put troops at
risk," Washington Post, 21 June 2010.
[2] Tom Bowman, "Rules of Engagement Are A Dilemma for US
Troops," Interview on National Public Radio, December 11
2009.
[3] Ralph Peters, "The Rules Murdering our Troops," New York
Post, 25 September 2009,
http://www.nypost.com/p/news/opinion/opedcolumnists/item_u93
5ECKNWXpLK8C5D96pdN (accessed 8 October 2011).
[4] Snider, Don, Major Nagl, John, Major Pfaff, Tony. Army
Professionalism, the Military Ethic, and Officership in the
21st Century. Carlisle, PA: Strategic Studies Institute,
1999. For the purposes of the project, I will use the term
"soldier" to refer generically to uniformed members of the
military. I will capitalize "Soldier," "Sailor," and
"Airman" when referring to uniformed members of the Army,
Navy, and Air Force just as one would capitalize "Marine"
when referring to uniformed members of the U.S. Marine
Corps.
[5] For the purposes of this paper, I will consider the
"Traditional View" of military ethics as roughly synonymous
with the "Just War Tradition," especially as articulated by
Michael Walzer in Just and Unjust Wars.
[6] Eric Patterson, Just War Thinking, (New York: Lexington
Books, 2007) 47. Common throughout social contract theories
is the idea that it is in the interest of the individual to
cede certain rights to a sovereign who is capable of and
responsible for maintaining the order necessary to sustain
cooperative civil society. Maintaining that order, says
Patterson, is the "fundamental social contract-security for
acquiescence to authority."
[7] James M. Dubik, "Human Rights, Command Responsibility,
and Walzer's Just War Theory," Philosophy and Public Affairs
11, no. 4 (1982): 355. Dubik rejects Walzer's conception
that soldiers give up their right to life in order to gain
the right to kill. He argues that if rights to life and
liberty are indeed natural then soldiers -or anyone for that
matter - cannot give them up.
[8] ISAF Commander's Counterinsurgency Guidance
(Headquarters, International Security Assistance Froce Kabul
Afghanistan, 2009) 2. According to the assessment, "The
intricate familial, clan, and tribal connections of Afghan
society turns "attrition math" on its head. From a
conventional standpoint, the killing of two insurgents in a
group of ten leaves eight remaining: 10-2=8. From the
insurgent standpoint, those two killed were likely related
to many others who will want vengeance."
[9] Michael Walzer, Just and Unjust Wars, 2nd ed (New York:
Basic Books, 1992) 119-120. Because the immediate, short-
term, military objectives are embedded in the larger,
overall military objective, proportionality calculations
apply to both. But when it comes to the more limited, short
term objectives, proportionality must be calculated in terms
of its contribution to that objective, not in terms of the
value of the overall objective.
[10] Walzer, 53-54.
[11] Walzer, 101-108, 151-153.
[12] David Luban, "Risk Taking and Force Protection," The
Scholarly Commons, (Washington, DC: Georgetown University
Law Center, 2011) 8-9.
[13] Walzer 136.
[14] Asa Kasher and Amos Yadlin, Military Ethics of Fighting
Terror: An Israeli Perspective. The Journal of Military
Ethics, April 2005, Vol 4, Issue 1, 17.Kasher, 17.
[15] Steven Erlanger, "A Gaza War Full of Traps and
Trickery," New York Times, 10 January 2009.
[16] Bethany Bell, "Counting the Casualties of War," BBC
Online, 28 January, 2009,
http://news.bbc.co.uk/2/hi/middle_east/7855070.stm (accessed
9 October 2011).
[17] Avishai Margalit and Michael Walzer, "Israel: Civilians
and Combatants," The New York Review of Books, May 14-27,
2009, Vol LVI, Number 8, 22.
[18] Rupert Smith, The Utility of Force: The Art of War in
the Modern World (New York: Alfred A. Knopf, 2007), 281. As
retired British general Rupert Smith noted in The Utility of
Force, in such conflicts, the loyalties, attitudes, and
quality of life of the people do not simply impact the
outcome they determine it.
[19] James D. Delk, Fires & Furies: The LA Riots, (Palm
Springs, CA: ETC Publications, 1995). Quoted in Christopher
M. Schnaubelt, "Lessons in Command and Control from the Los
Angeles Riots," Parameters 27, (Carlisle, PA: US Army War
College, Summer 1997) 1
[20] Paolo Tripoldi, "Peacekeepers, Moral Autonomy, and the
Use of Force," Journal of Military Ethics, Vol 5, No. 3,
2006, 217
[21] John Kleinig, The Ethics of Policing, Cambridge:
Cambridge University Press, 1996, Chapter 1. In most
jurisdictions in the United States, police would be
prohibited to attempt to kill a violent criminal if
bystanders would knowingly be harmed. This is true
regardless of how many others the police officer may think
may be harmed by the criminal's escape.
----------------------------------------------------------
Copyright Foreign Policy Research Institute
(http://www.fpri.org/).
RISK, MILITARY ETHICS AND IRREGULAR WARFARE
By Colonel Tony Pfaff
PROLOGUE
A US Army Non-commissioned officer reported in a letter to
commentator George Will that during one patrol his unit came
under heavy small arms fire and rocket propelled grenades
(RPGs). In response, he requested artillery be fired on the
enemy's position. His higher headquarters denied the request
because of the proximity of Afghan civilians to the
fighting. Unable to continue the mission, he requested the
supporting artillery unit to fire smoke rounds to conceal
the unit's movement out of the engagement area. The
headquarters granted this request but even though the
chances of injury from a smoke round are remote, the
artillery unit had to deliberately fire one kilometer off
the requested position for fear of injuring civilians. As
result, the rounds were ineffective at concealing the unit's
movement.[1]
In another example, a higher headquarters denied a Marine
patrol permission to attack an apparent insurgent group
emplacing roadside bombs in Afghanistan. The Marines not
only observed that the Afghans possessed equipment
associated with improvised explosive devices (IEDs), they
had also recently intercepted a radio transmission
indicating insurgents were planting such devices in the
area. However, since the insurgents were planting the IEDs
in an area close to civilian populations and the only way
the Marines had available to intervene--machine guns and
helicopters-would have almost certainly caused collateral
damage, the higher headquarters denied their request to
attack the insurgents. Frustrated, the lieutenant in charge
angrily exclaimed, "I thought we were going to play by big
boy rules."[2]
Had they been playing by the traditional rules, the sergeant
would have received supporting fire and the Marines would
have been permitted to fire on the insurgents, even if both
courses of action meant risking noncombatant casualties. As
long as they did not target noncombatants and used just the
amount of force necessary to break contact and kill the
insurgents planting the IEDs, their request for additional
fire-power would be within the scope of traditional military
ethics. In fact, this emphasis on preventing collateral
damage in many of the counter-insurgent fights in
Afghanistan and Iraq has drawn a great deal of criticism
precisely because of the excessive risk soldiers are often
called upon to bear.[3]
INTRODUCTION
Soldiers, of course, are called on to bear risk in service
to the country. In fact, bearing that risk is an important
part of the Soldier's identity. In 2000, Don Snider, John
Nagl, and I wrote a monograph on Army professionalism that
argued this point, noting that, in part, risk-taking is an
inherent and essential part of what it means to be a
soldier. [4] Written in the context of "radical" force
protection policies in place during peacekeeping operations
in the Balkans, we argued that such policies not only
undermined soldier effectiveness, they were also immoral.
Forcing the choice between undertaking missions and
accepting personal risk forced soldiers to place that risk
elsewhere: either noncombatants or the mission. Radical
force protection policies forced them to place it on the
mission, which they did not undertake if there was the
possibility of harm to themselves. This situation
effectively turned soldiers into technicians and
bureaucrats-a situation just as absurd as the excessive risk
taking described above.
What we did not fully discuss in that paper was the central
role decisions about risk play in military ethical decision-
making. Traditional military ethics[5] accepts that soldiers
have a reasonable interest in taking the least risk possible
when conducting operations. However, when that risk is
transferred to noncombatants, these same ethics require
soldiers to observe the constraints of proportionality and
discrimination to limit how much risk they transfer. In this
view, assuming extra risk on the part of soldiers is
obligatory, at least up to the point of mission failure.
Since the limits of risks are identified with the
requirement to accomplish missions, preserving lives of
soldiers is experienced more as a concession to the
requirements of military necessity and not an obligation
itself.
By conflating preserving soldiers' lives with military
necessity the traditional view of military ethics sets up a
false dilemma where one must choose between non-combatant
lives, which have value, and soldiers' lives, which do not,
at least not apart from military necessity. It is no wonder
that many soldiers see ethical decision making in war-time
as the application of abstract principles, divorced from the
realities of fighting and winning those wars. This
abstraction is especially apparent in irregular warfare,
where the separability of civilian and military targets that
underpins the traditional view, blurs.
The traditional view requires Soldiers to always subordinate
their lives to accomplishing the mission and avoiding harm
to noncombatants (friendly or enemy) when choosing where to
transfer risk. This dynamic denies soldiers their right to
life and absolves the state of its obligations to protect
all its citizens. In the context of irregular warfare, where
civilians and civil society are increasingly inseparable
from war fighting, this subordination forces combatants to
assume all the risk since transferring it to civilians is
co-extensive with transferring it to the mission. Resolving
the absurdity requires reframing the problem. Rather than
conceiving military ethical decisions as the observation of
restraints on the use of force to meet obligations toward
enemy civilians, the central question of military ethics is
better described as where does one place risk in the face of
certain threats: combatants, non-combatants, or the mission.
THE TRADITIONAL VIEW: MILITARY NECESSITY AND PROPORTIONALITY
Military ethics begins with the utilitarian imperative to
accomplish missions. The logic is fairly simple. If one's
cause is just, one maximizes the good by achieving it. Thus,
actions that lead to victory or avoid defeat are not just
permissible; they are obligatory. Given the state's moral
obligation to protect its citizens,[6] military operations
conducted in their defense are prima facie obligated, even
when conducting those operations exposes combatants to
harm.[7] Thus, in what I will refer to as the "traditional
view," by taking on the role of soldier, one assumes the
state's obligation to protect its citizens. By taking on
that obligation, one further assumes the associated risks,
including the risk of death.
On the surface, military necessity would appear to permit
combatants wide latitude in mitigating risks to themselves.
Military necessity only requires them to choose courses of
action that maximize the chances for victory and minimize
the chances of defeat. Since preservation of soldiers' lives
is obviously closely linked to an army's ability to wage
war, the utilitarian ethics of military necessity would seem
to permit soldiers to transfer almost all the risk of war
fighting to the enemy-including enemy civilians. This
permission, of course, would only hold if transferring risk
to civilians were the best way to achieve the military
objective. However, given the obvious and close correlation
between preserving combat power and battlefield success, it
would be difficult to question the judgment of a commander
who chose the least risky course of action on the basis of
military necessity.
It is important to note that military necessity would also
require soldiers to transfer additional risk to themselves
if that were the best way to accomplish the mission at hand.
In fact, many examples of current counter-insurgency (COIN)
doctrine require very little-if any-transfer of risk to
noncombatants for fear of undermining efforts to win "hearts
and minds."[8] Thus, in regard to risk, military necessity
requires only that the commander take into account
operational considerations that maximize the chances of
mission success or minimize the chances of mission failure.
What it does not require is that he take into account
combatant or non-combatant lives beyond how they influence
those operational considerations. Thus military necessity
permits significant transfer of risk to enemy noncombatants.
It is worth noting, however, that it does not permit the
total transfer of risk. The utilitarian nature of military
necessity rules out courses of action whose outcomes result
in more harm than good. This restriction, referred to as
proportionality, requires soldiers to limit the harm to
civilians and civilian infrastructure they cause relative to
the value of the military objective. The value of the
military objective is measured against its contribution to
the moral objective of war: to establish a better state of
peace than the status quo ante bellum.[9] Thus
indiscriminate (or even insufficiently discriminate) acts
would be usually be unjustified because the harm they cause
undermines the chance for a stable peace
Because the proportionality requirement restrains the amount
of force soldiers are permitted to use, it entails soldiers
must take additional measures to limit the transfer of risk
to noncombatants. To the extent those measures impede
mission accomplishment, soldiers are then obligated to
assume that risk themselves. Generally speaking, soldiers
will prefer to use weapons that maximize the distance
between them and the target in order to lower their exposure
to enemy fire. The greater the distance, the less certain
friendly forces can be regarding specific locations of enemy
troops. Therefore, greater force, usually in the form aerial
or artillery bombardment, is required to destroy those enemy
forces. Advanced surveillance equipment such as satellites
or unmanned aerial vehicles can overcome some of this
uncertainty. Further, precision-guided munitions can limit
to some extent the amount of force required. However, as
combat from Iraq to Afghanistan to Gaza has shown, these
weapons cannot resolve uncertainty to the same degree that
boots on the ground can. Thus given the requirement to
restrain force, combatants may have to expose themselves to
greater risk in order effectively attack the enemy
objective.
Still, this level of risk is fairly low and military
necessity permits the transference of a great deal of risk
to noncombatants. Given the difficulty in placing a specific
value on a particular objective or the cost to noncombatant
lives in advance of the operation, soldiers in all but
extreme cases can reasonably argue that as long as they
observed some restraint and took some risk, they met the
conditions specified by military necessary and
proportionality.
DISCRIMINATION AND NON-COMBATANT IMMUNITY
The traditional view also requires soldiers to discriminate
between legitimate and illegitimate targets when employing
force. This requirement also typically draws its
justification from the state's obligation to protect its
citizens from harm. Most traditional views of military
ethics define war in terms of some violation of a state's
political sovereignty or territorial integrity.[10] These
"states rights" are not themselves morally worth defending,
but derive their value to the extent their preservation
secures the rights of citizens to life and liberty. Because
these rights are universal, they apply equally to friendly
and enemy noncombatants and restrict the kind of harms
soldiers may commit. This restriction, referred to as
noncombatant immunity, requires soldiers to intend not to
harm noncombatants when employing force against otherwise
legitimate military targets.
Discrimination does not, however, directly entail a
requirement to assume additional risk beyond what is
required to accomplish the mission. What requires soldiers
to assume such additional risk are those instances where
efforts to discriminate will be imperfect and that no matter
how precise combatants try to be, noncombatants will be
harmed. In those instances, soldiers must take additional
measures to mitigate the risk to noncombatants, even if that
means assuming additional risks themselves.
To illustrate this point, Walzer cites as an example the
efforts of a Soldier in WWI whose mission was to clear
cellars of enemy combatants in a recently seized urban area.
In doing so, he took the additional measure of shouting out
a warning in order to give noncombatants the opportunity to
identify themselves and thus avoid harm. Walzer's point here
is that it is not sufficient to simply not intend to harm
noncombatants; rather, one must intend not to harm
noncombatants.[11] Had the Soldier simply not intended to
harm noncombatants, then he would have been under no
obligation to provide a warning. However, simply throwing
grenades down cellar doors hardly seems like an act of
discrimination, whatever the he might have intended. Thus,
even though giving such a warning would give enemy soldiers
time to react and place him at greater risk, he was
obligated to offer it anyway. Georgetown professor Dave
Luban articulates the objection this way:
"Knowing that an attack will hit both military and
civilian objects, the soldier must take care to
intend only to hit the military target, not the
civilians. That seems like an absurd and dishonest
mental game. How do you avoid war crimes? Close
your eyes, take a deep breath, concentrate hard,
and refocus your intentions. Then go ahead and do
what you were going to do anyway."[12]
To avoid absurdity and dishonesty one must take action to
discriminate, even if that requires additional risk. Of
course, as noted above, that risk is still limited by the
fact combatants are not obligated to conduct operations in a
way they will knowingly fail or not be able to continue the
fight. But even this limitation will not resolve the
absurdity the excessive risk taking described by the NCO and
Marine lieutenant above.
DIFFICULTY FOR THE TRADITIONAL VIEW
Given the standard view, it is not hard to see why the NCO's
and Marine lieutenant's higher headquarters withheld
supporting fires and smoke as well as the permission to
attack the insurgents planting IEDs. Military necessity
demands concern for the mission. The application of
proportionality and discrimination, however, demand concern
for noncombatants. While commanders are expected to conserve
soldiers' lives as a matter of military necessity, the
demands of irregular warfare-where support of the local
population is critical to mission accomplishment-place
almost all the risk associated with conducting operations
onto the soldier.
The difficulty for the standard view is that when choosing
where to transfer risk-mission, enemy civilians, or
themselves-combatants must always choose to transfer risk to
themselves, except when the mission itself is at stake. By
placing friendly combatants lowest in priority in terms of
risk avoidance, one effectively denies them the right to
life. By denying them the right to life, they are denied the
protection of the state they are defending. This view is
explicitly held by Walzer who notes:
"The immediate problem is that soldiers who do the
fighting _lose the rights they are supposedly
defending. They gain war rights as combatants and
potential prisoners, but they can now be attacked
and killed at will by the enemy. Simply by
fighting _ they have lost their rights to life and
liberty _ and they have lost it, even though,
unlike aggressors states, they have committed no
crime."[13]
Israeli philosopher Asa Kasher has famously challenged this
feature of the traditional view. In an article co-written in
2005 with then Major General Amos Yadlin, Kasher remarked:
"the duty to minimize casualties among combatants during
combat is last on the list of priorities _ we reject such a
conception because it is immoral."[14] The authors argued
that the state's obligation to protect its citizens from
harm-which justifies the use of force in the first
place-extends also to soldiers. While recognizing that
soldiers do assume risks friendly civilians do not, they
argue that soldiers still retain their rights to life. The
state may be justified in putting his life at risk because
of its obligation to defend all citizens, but the obligation
to protect the soldier to the extent commensurate with his
duties does not go away.
Further, the authors argued that the state has no such
obligation to protect enemy noncombatants, especially if it
means assuming additional risk on the part of friendly
combatants. While they agree that enemy noncombatants may
not be directly targeted, they argue it is immoral to ask
friendly combatants to take additional risks to protect
those civilians outside the state's effective control. This
restriction follows from the fact that the social contract
forbids the state from jeopardizing the lives of its
citizens unless it serves the defense of other citizens. In
their formulation, minimizing injury to the friendly
noncombatants is a higher moral priority to a military than
minimizing casualties to its own troops. However, force
protection is a higher priority than minimizing casualties
to enemy civilians not under the military's control.
This view was apparently influential in shaping the way the
Israeli Defense Forces (IDF) conducted operations in Gaza in
2009. According to press reports, Israeli soldiers were told
to "protect themselves first, civilians second." According
to one report, if they "are told to reach an objective, they
first call in artillery or airpower and use tank fire."[15]
Such tactics minimized the risk to soldiers, but also
limited their ability to discriminate among targets, which
typically increases the risk to non-combatants. Given that
more than 1300 Gazans reportedly died in the conflict,[16]
it seems that these practices did represent a significant
transfer of risk to the noncombatants, which would have only
been permitted under the traditional view had the IDF taken
whatever measures they could to discriminate up to the point
of mission failure.
The difficulty with Kasher and Yadlin's view is that it
privileges nationality (or at least residence) when
determining where the burden of risk should lie. They argue
that what determines the state's obligation to protect-or at
least avoid harm-is whether the state has effective control
over the territory in which the combat operations are taking
place. If the state has effective control, then it is has
sovereignty over that territory. If the state claims that
right to sovereignty, then it must respect the rights to
life and liberty that justify that claim to sovereignty in
the first place. Respecting those right includes exercising
that sovereignty to protect those persons under its control,
which is the fundamental feature of the social contract.
Where the state does not have sovereignty, then it has no
obligation to protect.
To illustrate why the absence of sovereignty does not entail
the absence of the obligation to avoid harm, Walzer and
Avishai Margalit described a situation where Lebanese
Hezbollah (LH) forces capture an Israeli kibuttz. They
described four different scenarios where the IDF is
confronted with liberating the kibuttz. In one scenario LH
is holding Israeli citizens hostage and using them as human
shields. In this case, under Kasher and Yadlin's model,
preserving the lives of IDF personnel would come second to
preserving the lives of the civilians thus limiting the
amount of risk they could transfer to either the mission or
to the noncombatants.
In the next scenario, there are a number of "well-wishing
volunteers"-supportive pro-Israeli non-nationals. Though not
Israeli citizens and though not in territory effectively
under government control, Walzer and Margalit argue that it
seems intuitive that their nationality should not weigh
against them when soldiers determine where the burden of
risk should lie. They should assume the same additional risk
they would provide the Israeli citizens the volunteers
support.
They then alter the scenario and rather than hostages, the
kibbutz is populated by anti-Israeli protestors from abroad.
Here the only thing that distinguished this population from
the previous population was their attitude towards Israel.
However, this discriminating criterion would not be applied
to the population of Israeli citizens. Had the Israeli
citizens in the first scenario been supporters of LH rather
than hostages, the obligation to take extra risks would
still be in place. In Kasher and Yadlin's view, it would not
matter if the Israeli citizens in the kibbutz supported the
LH who had taken over, the soldiers' obligation to protect
them would still hold.
The next scenario involved Lebanese citizens who were bussed
in to act as human shields. In this case, they do not
support the LH or Israel. They just simply want to return to
their lives in Lebanon. Here again, the only thing that
distinguishes this population from the ones for which
additional risk would be obligated is their nationality.
In the first case, the rules the IDF already plays by -
soldiers assume additional risk in order to protect friendly
civilian lives. In the second example, it seems counter-
intuitive to argue these pro-Israeli supporters enjoy less
consideration than the Israelis under similar circumstances.
If neither nationality nor presence under effective control
affect decisions about risk in the first two examples, then
it is not clear why they should in the latter two, since
these cases are differentiated only by attitude toward
Israel. As Walzer and Margalit note:
"(b)y wearing a uniform, you take on yourself a
risk that is borne only by those who have been
trained to injure others (and to protect
themselves). You should not shift this risk onto
those who lack the capacity to injure; whether
they are brothers or others. The moral
justification for this requirement lies in the
idea that violence is evil, and that we should
limit the scope of violence as much as possible.
As a soldier, you are asked to take an extra risk
for the sake of limiting the scope of war. "[17]
Here we have a clash of intuitions. Walzer and Margalit are
right: liability to attack depends on the threat one
represents, not one's nationality or residence. But Kasher
is also right: soldiers do have a right to life and an
expectation that the state will take measures to protect
them as well.
So, while the imperative to accomplish missions obligates
soldiers to take risks, a broader view of military ethics
must also consider the obligation the state has to preserve
their soldiers' lives and well-being. The standard view
cannot accommodate both these intuitions. Thus we must
either continue to require Soldiers to bear all the risks of
war fighting or revise the standard view.
IRREGULAR WARFARE AND RISK
In the kinds of conventional wars that gave rise to the
rules associated with the standard view, the risk is largely
manageable. As noted before, soldiers are not required to
assume so much risk that the mission fails or that they
would not be able to continue the fight. This limitation
provides commanders sufficient latitude to balance mission
requirement and soldiers' lives because it gives them
somewhere else to displace the risk associated with a
particular operation. While they are not permitted to
directly target noncombatants, they can construct the
operation to take advantage of long-range fires and other
protective measures, even if that means displacing some
risks to noncombatants.
However, because of the close association between the
support of the local population and victory, displacing that
risk onto noncombatants in irregular warfare often places
the mission at risk.[18] Further, irregular adversaries'
ability to mask their presence among the population gives
them an advantage over forces that cannot. This same ability
allows them to distinguish opposing forces, which further
places those forces at a disadvantage. This asymmetric
ability to distinguish one's foe not only offsets the
advantages associated with soldiering, it ties that offset
to the presence of civilians on the battlefield.
Thus it is not simply the case that support of local
populations is critical to winning irregular wars; rather,
it is the case that the population represents a contribution
to enemy capability. The fact that irregular adversaries can
hide among the population while at the same time targeting
counter-insurgent forces, suggests that the presence of
civilians has a direct and positive impact on the enemy's
ability to fight. Additionally, when it is the case that
civilians actively support the insurgent cause, that
connection to enemy capability is further entailed. Thus in
irregular warfare, civilians' contribution to the enemy's
ability to wage war is not easily separated.
It is this close connection coupled with the requirements of
the traditional view that place soldiers in the absurd
positions described above. To avoid such absurdities, what
is required is a view of military ethics that permits
commanders to displace risk on something other than soldiers
while at the same time upholding the principles of
proportionality and discrimination as articulated above.
Because civilians and civil society are closely linked with
the enemy's ability to fight, it makes sense that some of
the risk associated with that fight should be transferred to
them, at least when the choice is transferring it all to
friendly combatants. However, arguing that civilians should
bear risk because of their central role in determining enemy
combat capability does not necessarily entail greater
permissions for soldiers to conduct operations in such a way
civilians would be harmed. Kasher and Yadlin are right, the
state has an obligation to protect all its citizens,
including soldiers. But Walzer and Margolit are also right:
the state should not implement such protection in a way that
violates the rights of noncombatants: friendly or enemy.
Thus, the question to answer when determining where the
burden of risk should lie is: how would we handle that
threat if it manifested within our own populations? Looking
at military ethical situations this way requires us to
reframe the problem from the simple application of rules
associated with military necessity, proportionality, and
discrimination to balancing risk in a way that respects the
rights of combatants and noncombatants alike.
RESOLVING THE MORAL PROBLEM: ENEMIES AND CRIMINALS
When enemy combatants and civilians are difficult to
separate in the manner described above, it is often because
there some sort of order that supports the activities
associated with civil society. In conventional combat zones
that order is typically suspended as combatants wrestle over
who controls that particular piece of land. However,
insurgencies usually take place in the context of a larger
social and political order to which the insurgents either
object or exploit and which counter-insurgent forces are
presumably trying to defend. In fact, these sorts of
irregular conflicts are not so much about destroying a
particular order, but gaining control over it.
This point suggests we have to reconsider what sort of
adversary irregular adversaries are. Rather than an
existential threat to the state, they are an existential
threat to the citizens of the state. This distinction is
important. In the kinds of conflicts represented by Iraq,
Afghanistan, and Gaza the immediate threat is not to the
state but to its citizens. However, the standard view rests
on the idea that war is only justified in the face of an act
of aggression defined as a violation of political
sovereignty and territorial integrity. That kind of
aggression, however, is not what soldiers typically confront
in irregular warfare. In these conflicts their aim is to
maintain a particular order, not destroy it.
Over time this could of course change. And when it does, the
sort of ethics reflected in the standard view would be
appropriate. However to the extent irregular adversaries
represent a threat to individual rights but not the
corresponding state's rights, they are then best conceived
as criminal. While they do not directly threaten those
state's rights, their threat to individual rights still
places a burden on the state to protect them.
In 2001, I argued in the monograph Peacekeeping and the Just
War Tradition, that the distinction between war fighting and
law enforcement was essential to understanding soldiers'
ethical obligations in irregular conflicts. This distinction
is well-captured in the actions of a joint police-military
patrol undertaken during the 1992 Los Angeles riots, where
Marines and police responded to a domestic disturbance. When
they arrived at the apartment where the disturbance
occurred, the police knocked on the door and announced
themselves. The response was a shotgun blast through the
door that fortunately missed the officers. As the police
readied to enter the room, they yelled to the Marines,
"Cover me!" In response, the Marines fired approximately 200
rounds through the door. Fortunately, no one was
injured.[19]
Though both military and law enforcement organizations
instruct their forces to always use the least force
necessary, this example shows they have very different
conceptions of what necessity entails. In the police view,
it would be better to develop the situation and ascertain
whether there were nonviolent ways to resolve it. As far as
the Marines were concerned, any degree of proportional force
that eliminated the threat would be appropriate, even if it
put civilians at some risk.
The different reactions are due to the way each perceives
and is trained to deal with threats. To the police, the
threat is a criminal they must apprehend in order to
minimize disruption to society. Since the use of violence
represents a further disruption of the peace, police are
always looking to use the least force possible. But soldiers
are trained to defeat enemies, who must be killed-or at
least captured-if there is to be peace. They are always
looking to use the most force permissible.
These different models provide soldiers with different
conceptions of the use of force they can employ to meet
their obligations to the mission, noncombatants, and
themselves. By understanding there is more than one context
in which to apply military force, we reframe the problem.
Rather than simply asking what the rules permit, we ask
first how do these rules apply given the relevant concept of
necessity. In this view, military necessity, proportionality
and discrimination still matter but their application
changes depending on whether the most force permissible or
the least force possible applies. When that context changes,
it is not the rules that change, simply where the burden of
risk lies. Further, this view allows us to recognize that
force protection is itself a moral obligation that
commanders must consider when determining that burden of
risk.
The following are revisions to military necessity,
proportionality, discrimination, and force protection
suggested by this analysis.
Proportionality: When calculating proportionality, soldiers
fighting wars are required to weigh the value of the
military objective and the harm done to achieve it against
establishing a better state of peace following the cessation
of hostilities. Soldiers combatting irregular adversaries,
on the other hand are obligated to weigh their actions arm
against the requirements to maintain, if not strengthen, the
current order. This point means that soldiers must not only
consider the consequences of the violence they may employ,
but also of non-violent actions that nonetheless disrupt the
peace, such as mass detentions or excessive restrictions on
movement.
Non-combatant Immunity: When discriminating against
legitimate and illegitimate targets, soldiers fighting wars
must intend to not harm non-combatants. However, as long as
they take actions to limit that harm, they are still
permitted to act, even if they know some civilians may be
harmed. Soldiers combatting irregular adversaries, however,
must further intend not to place civilians at risk. This
point does not suggest that police are never permitted to
undertake actions where civilians may be harmed. For
example, they may undertake a high-speed car chase even
though there is always the chance that they may lose control
of the car and inadvertently harm a civilian. The difference
here is that the harm is not only unintended, it is
unforeseen.
Additionally, as Kasher and Yadlin would have to argue, as
soldiers gain more control over the ground they occupy, they
take on the obligation to protect civilians from harm in the
same way police do.[20] This latter condition assumes that
soldiers can act as police in the given area of operations.
Clearly, Hamas's control over Gaza prohibited the IDF from
doing that. In such cases, soldiers may engage the adversary
under the enemy model, but only in order to establish a law
enforcement capability as rapidly as possible.
Force Protection: As noted earlier, soldiers fighting
enemies are obligated to take risks to minimize harm to non-
combatants, though these risks are limited by the
requirements of force protection and mission accomplishment.
This obligation to accept risk also holds in irregular
conflicts. However, when fighting irregular adversaries,
soldiers are limited in how much risk they can transfer to
noncombatants by the requirement to preserve the peace. This
point does not suggest that soldiers are obligated to go on
suicide missions. It does mean if the choice is to forego
harming civilians or undertaking a particular course of
action, soldiers must choose to forego that course of
action. This point does not suggest that they must forego
achieving their objective; just that they must find another
way to do it. Police, for example, would let a criminal,
even a violent one, escape before firing into a crowd of
civilians. They would not, however, stop their pursuit of
that criminal nor their efforts to prevent future criminal
acts.[21]
CONCLUSION
By viewing military ethical decision-making through the lens
of balancing risk as opposed to simply applying rules, we
can resolve the conundrum created by the application of the
standard view in non-standard combat environments. Further,
we can do so and still respect the basic rights the standard
view attempts to uphold.
In resolving the conundrum, it is important to be clear that
it does not follow from this analysis that noncombatant
casualties are never permitted when fighting irregular
warfare. What follows is that when determining how best to
accomplish military objectives soldiers must always prefer
those actions that avoid risk to noncombatants. This
preference is required to uphold the civil order soldiers
are trying to defend. When they cannot avoid that risk, they
are permitted to act, but must take extra measures to limit
that risk to noncombatants, just as in regular warfare they
must take extra measures to limit harm.
In this view, then, the NCO should have received accurately
placed smoke to allow him to break contact. The chance of
harm from a smoke round is so limited that it is reasonable
to argue that any risk, much less harm, is unforeseen. The
Marine Corps lieutenant would probably not have been
permitted to engage the insurgents planting the IEDs with
machine gun fire and helicopter gunships just as police
would not be permitted to fire into a crowd, even if they
knew that would prevent a violent crime.
What he should have the option to do is kill or detain the
insurgents if he can do so without placing civilians at
risk. Additionally, he should also have the option to avoid
running convoys where the IED is planted until it could be
safely dismantled. Just because he is not permitted to place
risk on noncombatants does not mean his Marines have to
accept that risk as well. He should be permitted to
reconceive the mission so that the ultimate
end-strengthening the order represented by the Afghan
government-is achieved.
----------------------------------------------------------
Notes
[1] George Will, "U.S. tactics in Afghanistan put troops at
risk," Washington Post, 21 June 2010.
[2] Tom Bowman, "Rules of Engagement Are A Dilemma for US
Troops," Interview on National Public Radio, December 11
2009.
[3] Ralph Peters, "The Rules Murdering our Troops," New York
Post, 25 September 2009,
http://www.nypost.com/p/news/opinion/opedcolumnists/item_u93
5ECKNWXpLK8C5D96pdN (accessed 8 October 2011).
[4] Snider, Don, Major Nagl, John, Major Pfaff, Tony. Army
Professionalism, the Military Ethic, and Officership in the
21st Century. Carlisle, PA: Strategic Studies Institute,
1999. For the purposes of the project, I will use the term
"soldier" to refer generically to uniformed members of the
military. I will capitalize "Soldier," "Sailor," and
"Airman" when referring to uniformed members of the Army,
Navy, and Air Force just as one would capitalize "Marine"
when referring to uniformed members of the U.S. Marine
Corps.
[5] For the purposes of this paper, I will consider the
"Traditional View" of military ethics as roughly synonymous
with the "Just War Tradition," especially as articulated by
Michael Walzer in Just and Unjust Wars.
[6] Eric Patterson, Just War Thinking, (New York: Lexington
Books, 2007) 47. Common throughout social contract theories
is the idea that it is in the interest of the individual to
cede certain rights to a sovereign who is capable of and
responsible for maintaining the order necessary to sustain
cooperative civil society. Maintaining that order, says
Patterson, is the "fundamental social contract-security for
acquiescence to authority."
[7] James M. Dubik, "Human Rights, Command Responsibility,
and Walzer's Just War Theory," Philosophy and Public Affairs
11, no. 4 (1982): 355. Dubik rejects Walzer's conception
that soldiers give up their right to life in order to gain
the right to kill. He argues that if rights to life and
liberty are indeed natural then soldiers -or anyone for that
matter - cannot give them up.
[8] ISAF Commander's Counterinsurgency Guidance
(Headquarters, International Security Assistance Froce Kabul
Afghanistan, 2009) 2. According to the assessment, "The
intricate familial, clan, and tribal connections of Afghan
society turns "attrition math" on its head. From a
conventional standpoint, the killing of two insurgents in a
group of ten leaves eight remaining: 10-2=8. From the
insurgent standpoint, those two killed were likely related
to many others who will want vengeance."
[9] Michael Walzer, Just and Unjust Wars, 2nd ed (New York:
Basic Books, 1992) 119-120. Because the immediate, short-
term, military objectives are embedded in the larger,
overall military objective, proportionality calculations
apply to both. But when it comes to the more limited, short
term objectives, proportionality must be calculated in terms
of its contribution to that objective, not in terms of the
value of the overall objective.
[10] Walzer, 53-54.
[11] Walzer, 101-108, 151-153.
[12] David Luban, "Risk Taking and Force Protection," The
Scholarly Commons, (Washington, DC: Georgetown University
Law Center, 2011) 8-9.
[13] Walzer 136.
[14] Asa Kasher and Amos Yadlin, Military Ethics of Fighting
Terror: An Israeli Perspective. The Journal of Military
Ethics, April 2005, Vol 4, Issue 1, 17.Kasher, 17.
[15] Steven Erlanger, "A Gaza War Full of Traps and
Trickery," New York Times, 10 January 2009.
[16] Bethany Bell, "Counting the Casualties of War," BBC
Online, 28 January, 2009,
http://news.bbc.co.uk/2/hi/middle_east/7855070.stm (accessed
9 October 2011).
[17] Avishai Margalit and Michael Walzer, "Israel: Civilians
and Combatants," The New York Review of Books, May 14-27,
2009, Vol LVI, Number 8, 22.
[18] Rupert Smith, The Utility of Force: The Art of War in
the Modern World (New York: Alfred A. Knopf, 2007), 281. As
retired British general Rupert Smith noted in The Utility of
Force, in such conflicts, the loyalties, attitudes, and
quality of life of the people do not simply impact the
outcome they determine it.
[19] James D. Delk, Fires & Furies: The LA Riots, (Palm
Springs, CA: ETC Publications, 1995). Quoted in Christopher
M. Schnaubelt, "Lessons in Command and Control from the Los
Angeles Riots," Parameters 27, (Carlisle, PA: US Army War
College, Summer 1997) 1
[20] Paolo Tripoldi, "Peacekeepers, Moral Autonomy, and the
Use of Force," Journal of Military Ethics, Vol 5, No. 3,
2006, 217
[21] John Kleinig, The Ethics of Policing, Cambridge:
Cambridge University Press, 1996, Chapter 1. In most
jurisdictions in the United States, police would be
prohibited to attempt to kill a violent criminal if
bystanders would knowingly be harmed. This is true
regardless of how many others the police officer may think
may be harmed by the criminal's escape.
----------------------------------------------------------
Copyright Foreign Policy Research Institute
(http://www.fpri.org/).
No comments:
Post a Comment