In 1999, I argued that transitions from war to peacekeeping may make it difficult to tell what is necessary… “As the nature

Ethics in Complex Contingencies: New Demands on the Warrior Ethic

LTC Tony Pfaff

Prologue:

Soldiers searching for insurgents knocked on an apartment door where they were told loyalists of Saddam Hussein were hiding. They yelled out in English and Arabic “US Army, open the door!” After a few minutes they heard a shot come from the apartment. In the confusion it was not clear if it was aimed at them or not. The patrol leader, with little time to react if he was to prevent the enemy from escaping or worse his men from being injured or killed, decided to act. He ordered one of the soldiers to break the door down and another to throw in a percussion grenade. After the dust cleared, they found they had killed a teen-age girl and her father, who fired the shot because he thought criminals were at the door.[1]

It is not the purpose of this paper to second-guess hard decisions made by military professionals in the heat of battle. However, situations like the one described above make the warrior ethic, by which soldiers make and judge these decisions, seem inadequate. Given the ethics of the military profession arguably these soldiers did nothing wrong. Civilian deaths in war are legally and morally permissible. But what troubles some about this example is that the family in question had survived the major combat operations and was going about the business of reconstructing their lives in post-Saddam Iraq. While all death in war is tragic, deaths of noncombatants after a war is apparently over seem especially so and undermine the ideal of a just and stable Iraq for which soldiers are ostensibly fighting.

Introduction:

Situations like the ones described above are indicative that the increasing range of missions the Army is called upon to accomplish is stressing the warrior ethic and complicating its application in “real-world” environments. The warrior ethic evolved in the context of a Westphalian worldview where states have rights and can redress certain violations of those rights with military force. In this context, threats to those rights were other states and the military forces they employed. But today there is a mismatch between worldview and threat that is eroding the professional military ethic and this can have moral as well as practical implications. Shortly after the United States began conducting military operations in Afghanistan, an article appeared in the Los Angeles Times claiming that the military’s overwhelming concern for avoiding noncombatant casualties, driven largely by a desire to avoid domestic and international criticism, hampered its ability to accomplish its mission of finding Osama Bin Laden and ending the war quickly. Paradoxically, the article pointed out, this lengthened the war and led to more noncombatant deaths.[2]

What complicates matters is that the military is confronting not only a wider range of threats, but with the emergence of fourth-generation warfare, different kinds of threats as well. Over the last decade, the military has been called upon to keep the peace in Bosnia, confront terrorism in Afghanistan, and fight a war in, as well as rebuild, Iraq. To do so it has had to conduct a range of operations all in an environment where the over-use of force can undermine the political will necessary to continue the mission and its under-use can jeopardize mission accomplishment. This is most acutely felt in Operation IRAQI FREEDOM (OIF) where Coalition forces, originally organized for war-fighting, are conducting a variety of operations including counter-insurgency, peacekeeping, and nation-building. Further they are confronting diverse enemies with varying ideologies, goals, and capabilities which make operations in Iraq practically a separate category not easily described by words like war, peacekeeping, peacemaking, insurgency, counter-terrorism, etc. Yet domestic and international criticism over continued civilian deaths and detainee abuse threaten to undermine support for a continued US presence.

Ethically speaking these operational distinctions can be important. While the warrior ethic treats mission accomplishment as a moral imperative, it also recognizes the moral and legal limitations that shape our judgment regarding the conduct of military force. These constraints call on members of the military to always strive to use the least force necessary, whether fighting wars or keeping peace. However what is necessary in war can be excessive in peace, and failure to recognize this can have dire consequences. This means when transforming the military profession, one must address not only its structure and organization, but its ethics as well. To resolve the confusion and prevent ethically—and politically—self-defeating applications of force, we will need to extend the warrior ethic to account for the increasing range and changing nature of the threat.

The most salient difference between the use of force in peace and war, which I’ll label the enemy and criminal models respectively, is the room each makes for civilian casualties. In the enemy model, soldiers may act in such a way that noncombatants may be harmed or even killed, but under the criminal model, police may not. In the former, combatants have greater permissions to put noncombatants at risk while in the latter; the protection police owe civilians is nearly absolute. [3] This difference, when applied in the environment of complex contingencies, provides a significant challenge for the military professional. In both models, the obligations owed noncombatants and bystanders depend on the kind of threat soldiers are facing; but the nature of the threat is not always clear and this has led to confusion, and in some cases tragedy, as soldiers faithfully apply an ethic better suited for war in conditions of peace and vice-versa.

To illustrate my point and hopefully resolve some of the moral confusion, I will discuss first how the potential conflict between apparent restrictions of the “police” ethic and the perceived obligations of the “warrior” ethic create and produce moral confusion. This requires a discussion of the sources of the professional military ethic as well as the civic peace that members of the police and military forces are obligated to protect and the distinct permissions, prohibitions, and obligations that bind on them when doing so. The result gives us two models of the ethics of force-- a “criminal” and a “enemy” ethic—from which we can articulate distinct “police” and “warrior” ethics that define the ethical environment in which members of the military find themselves and identify their requisite obligations and permissions. This will require a discussion of the threats faced by the state and how they have evolved in view of fourth-generation warfare. The paper concludes by showing how this complexity can be recognized and resolved by modifying and extending the jus in bello requirements of proportionality and discrimination to account for the demands of both models and resolve some, perhaps all of the underlying moral confusion.

Figure 1: Sources of the Professional Military Ethic

The Professional Military Ethic:

The professional military ethic, which I will treat as synonymous with the warrior ethic derives its substance primarily from three sources: 1) functional imperatives of the profession; 2) national values, beliefs and norms; and 3) international laws and treaties. While these sources complement each other, they can also be a source of ethical tension. The functional imperative obligates military professionals “to put the mission first, refuse to accept defeat, (and) never quit…”[4] This essentially utilitarian imperative,[5] captured in the notions “military necessity,” obligates military professionals to maximize the good by undertaking missions that will most likely lead to victory and do everything in their power to accomplish them. The other components, national values and beliefs as well as international law and treaties, which philosopher Michael Walzer refers to collectively as the “war convention,” are largely deontic[6] constraints that give substance to what it means for military professionals to execute their duties ethically. Since utilitarian ethics seek to maximize some good—in this case victory—while deontic ethics seek to uphold a principle regardless of the consequences, it is not hard to see how conflicts can arise. But we cannot simply resolve the conflict by prioritizing one over the other. Values, beliefs, and law can restrict the means by which military professionals fulfill the obligations of the functional imperative; however, violating them can undermine the domestic and international political will necessary to sustain the fight. According to an 11 May 2004 CBS poll, 39% of respondents approved of the way the war is being handled and 29% thought the war had been worth the cost; 77% responded they thought detainee abuse at Abu Ghurayb was serious problem.[7]

The Increasing Range of Threat: Criminals and Enemies

The war convention includes the range of articulated norms, customs, professional codes, legal precepts, religious and philosophical principles, and reciprocal arrangements that aim to prevent war, and failing that, to limit the misery caused by war. This requires soldiers to subordinate the use of force to the aim of establishing or preserving a just and stable peace. [8] This convention is more than a set of rules; it is but rather a framework that gives us the range of reasons we can give to tell when wars are just, and what actions are just when fighting them.

According to the war convention, war is permissible when the political sovereignty (PS) and territorial integrity (TI) of a state is violated.[9] This defines an “act of aggression” that warrants a military response. [10] It is beyond the scope of this paper to give a complete account of why this is the case, but roughly, the state has a moral obligation to preserve civic peace, [11] which is necessary if citizens are going to enjoy the rights to life and liberty specified in the Declaration of Independence and which the Constitution requires members of the US military to defend. For the state to do this, it must exercise political sovereignty over the territories in which its citizens reside. This is an important consideration as it allows us to distinguish enemies from criminals: enemies are capable of violating a state’s rights; criminals are only capable of violating an individual’s rights.

In the face of an enemy, military forces must secure a more stable peace than before hostilities began, one in which the enemy is defeated. In the face of crime, law enforcement professionals must aim at maintaining a state of civic peace that allows citizens to go about their lives without fear of crime. [12] In both cases, it must be the kind of peace in which conflicting parties can and want to resolve their differences non-violently, which means parties in conflict must have available to them peaceful means to resolve conflicts of interest. This not only means that at the end of a war warring states must be able to co-exist peacefully, but the citizens within each state must be able to do so as well. This requires just and stable political and judicial systems. This means the restoration of civic peace in Iraq is a necessary condition to establishing a stable peace and this is necessary, though not sufficient, if a war is to have served a moral purpose.

Establishing political stability is dependent on the restoration of civic peace, which is the kind of peace necessary to attain and secure fundamental human goods, including security and distributive justice.[13] According to political philosopher Mortimer Adler, civic peace is only possible in the context of community. A necessary feature of a community is a government that is capable of administering a process by which conflicts are resolved non-violently. For this to be possible, members of the community must cede some sovereignty to the community. This then gives us a set of conditions that must be present if we are to say a state of peace holds:

1) The enemy is defeated or transformed into a threat not capable of violating PS or TI.

2) Institutions necessary for law enforcement must be functioning including police, courts, and prisons.[14]

3) These institutions must be credible, that is people must be willing to rely on them to resolve disputes.

When these conditions hold, the criminal model will apply. When they do not, the enemy model will be more appropriate. This is because the civic peace a society enjoys is fundamentally different than the state of peace that can exist between states. Independent states, says Adler, have not ceded sovereignty, are always in a state of potential war. This does not mean states cannot enter into arrangements in which non-violent conflict resolution is preferable. It just means that when a state’s rights to PS and TI are violated, the state may take matters into its own hands; however, when an individual’s rights to life and liberty are violated, he must rely on the state to restore them.

The following example serves to illustrate the importance of this distinction. During a joint Marine-police operation conducted during the 1992 Los Angeles riots, Marines and police both responded to a domestic disturbance. As the police were ready to forcefully enter the room where the disturbance was occurring they yelled to the Marines, “cover me!” The Marines promptly fired approximately 200 rounds through the door. Fortunately, no one was injured.[15]

This example is instructive because it shows that even in the same situation there is a different understanding between police and members of the military as to how much force is minimally necessary. Even though they had been shot at, the police did not feel that they or anyone else were in immediate danger. In their view it would be better to develop the situation and ascertain if there were non-violent ways to resolve the issue. However, as far as the Marines were concerned it would be morally appropriate to respond with any degree of force that eliminated the threat even if it put civilians at some risk. The different reactions are due to the way each perceives the threat, and the way each is trained to deal with it. For the police, the threat is a criminal they must apprehend in order to minimize the disruption to the peace crime represents. Since the use of violence represents a further disruption of the peace, police are always looking to use the least force possible. But Marines are trained to defeat enemies, who must be killed if there is to be peace. They are always looking to use the most force permissible. In complex contingencies, however, it is not always clear what kind of threat soldiers are facing.

In Bosnia, rather than defending the US ‘s rights to PS and TI, the US military prevented rival militias from violating the life and liberty of Bosnian citizens. In Afghanistan the US military opposes tribal leaders and international terrorists who hope to drive Coalition forces from the country and, for some, restore the Taliban to power. In Iraq, the US military is not only fighting remnants of the former regime, but also multiple groups of Islamic extremists as well as Iraqi and Arab nationalists. While each has a different and sometimes competing vision of Iraq’s future, they do all have a common goal: drive the Coalition from Iraq and prevent a Coalition-sponsored government from asserting control. [16] Though not capable of defeating Coalition troops force-on-force some of these groups are organized, resourced and capable of sustained guerrilla operations which could make continued Coalition presence untenable or ineffective. Given their aim, it is these groups that threaten not only the sovereignty of the emerging Iraqi government, but to the extent their operations will create a permissive environment for international terrorists, they threaten the United States and other nations as well.

To make matters more complex, in both Iraq and Afghanistan, many attacks do not come from organized enemies, but rather from family and tribal based groups seeking to obtain power or avenge a perceived wrong such as the death or detention of a member.[17] Other attacks come from criminal elements that oppose Coalition forces only when they interfere with their activities. Rather than a threat to the sovereignty of the emerging government, they are a threat to individual Coalition troops and Iraqis.

This diversity of threat, coupled with the moral imperative to accomplish missions,[18] dramatically complicates ethical decision-making. In fact, a Human Rights Watch (HRW) report issued in October 2003 argued that Coalition forces in many cases needed to conduct themselves more like law enforcement officials, but lacked the capability and training. [19] But the truth of such an observation is not intuitively obvious, at least not from a soldier’s point of view. Combatants are permitted to conduct operations in which noncombatants will be harmed; however, at some point it is reasonable to ask, do foreign citizens have a right to expect the kind of protection they would receive if the same kinds of operations were conducted in the United States?

The Changing Threat: Fourth Generation Warfare

For it to be permissible to harm noncombatants the acts that threaten the peace will have to be more than mere crimes, they will have to be “acts of war.” This is an important point because it suggests that while the current response to some terrorists and insurgents may be justifiable, that may not always be the case. Some are more like criminals and to pursue them as enemies risks doing more moral harm than good.

What complicates matters is the ability of anti-Coalition forces to conduct fourth generation, or asymmetric, warfare which joint doctrine defines as attempts to circumvent or undermine an opponent’s strength while exploiting his weaknesses using methods that he either cannot or will not use.[20] This does not simply mean smaller forces can defeat larger ones by exploiting unexpected weaknesses. It means small forces can violate the political sovereignty and territorial integrity of a state without the support of another state.[21] Thus, the ability to wage fourth generation warfare suggests that some threats, though they may be more organized like criminals, may be more appropriately regarded as enemies. Before September 11, 2001, when terrorists attacked critical military, financial, and governmental institutions, the power to wage war on a state rested solely in the hands of other states, now it can also rest in the hands of a few dozen highly motivated people with cell phones and access to the Internet. This means that more than simply terrorizing individual civilians, certain insurgent and terrorist organizations represent a new category of threat from non-state actors that is characterized by an ability and willingness to violate the political sovereignty and territorial integrity of sovereign nations in order to achieve their political ends. Their capabilities distinguish them from mere criminals, but their methods do not. In the context of Iraq, it means the enemy may not only possess the capability to prevent the restoration of sovereignty, they may also take advantage of the chaos they create to threaten the sovereignty of other nations.[22]

In view of these changes, the criminal and war models are inadequate to fully account for the moral obligations, permissions, and prohibitions law enforcement officials and members of the military have to innocents and noncombatants in the conduct of complex contingencies. They are inadequate because the threats they are designed to respond to are not the kind of threats represented by the insurgents, terrorists, and criminals currently confronting the US in the global war on terror (GWOT).

	War	Peace	Complex Contingencies
Threat	Enemies: threaten states’ political sovereignty and territorial integrity	Criminals: threaten individuals’ life and liberty	Enemies and Criminals coexist
Obligations	Defend nation while observing restrictions of war convention; may not intentionally harm noncombatant	Must maintain peace; must use the least force possible to protect life and liberty; must not harm bystanders	Must not harm bystanders; but must preserve political sovereignty and territorial integrity
Permissions	Use the most force permissible to establish peace given the war convention; may unintentionally, harm noncombatants	May detain suspected criminals, may use armed force against violent criminals who represent continued threat	May harm noncombatants only to prevent violation of political sovereignty and territorial integrity

Table 1: Obligations, Permissions, and Threats

Restraining the use of Force: Noncombatant Immunity and Necessity

If the goal of military force is to establish or maintain a just peace, it must be applied in a just manner. However, as noted earlier, moral restrictions on force can impede the military’s ability to fulfill its other obligations. It is a nearly universally accepted moral principle that it is wrong to intentionally harm innocent people. However, states are obligated to protect their citizens from harm, but sometimes, military professionals and police must risk violating the former principle in order to uphold the latter. Combatants sometimes must attack enemy military targets located close to where noncombatants live. Police sometimes must put bystanders’ lives at risk when they pursue criminals. The application of these principles is further complicated by the fact combatants may intentionally kill enemy soldiers—many of whom are not guilty of any act of aggression.

International law resolves some of this complexity by prohibiting combatants from intentionally killing citizens of enemy states who are not directly involved in the fighting, regardless of their innocence or guilt.[23] They are immune from harm because they are not immediate threats to the ability of military forces to prosecute the war. Because they do not represent an immediate threat, their deaths are not necessary in order to achieve the goals of the war. Thus in the context of fighting wars, the law and morality of war typically distinguishes between noncombatants and combatants as opposed to the innocent and guilty or civilians and soldiers. This is because many combatants are innocent of any act of aggression and some civilians are guilty of it. This is also because some combatants, such as those who have surrendered or are wounded and not capable of fighting, no longer represent a threat and are thus immune from harm. Further, some civilians like munitions workers, because they are engaged in an activity that is logically inseparable from war fighting when they are working at the factory, are subject to harm.[24]

Since police do not typically fight wars, it may seem odd to discuss noncombatant immunity in this context; but because they also deal with threats to the peace, analogous notions apply. For police, only those civilians who have somehow demonstrated themselves to be a violent threat may be killed. And even then, police must make reasonable attempts to apprehend them first.[25] Thus, in the context of the pursuit of criminals we can make a distinction between 1) innocent civilians, who are not a violent threat and are not subject to harm, and 2) suspects, who may have committed a crime, but who must be given the opportunity to surrender first. In this latter category, police may only use deadly force after they have offered the suspect a chance to surrender and then only to prevent someone suspected of a violent crime from fleeing or committing a violent crime. Typically, police do not use deadly force against non-violent criminals.

Noncombatant Immunity and the Limits of Risk

Noncombatant immunity, as well as its law-enforcement analog, obligates soldiers and police to take additional risks in order to fulfill their respective functions. For the soldier this most often means establishing peace between the society he serves and other societies; for the police officer, this most often means detaining, and under certain circumstances killing, someone who represents an immediate threat to the peace the society currently enjoys.[26] Inasmuch as this often involves the use of deadly force, they sometimes put others at risk as well. Their functions, however, limit whom they may put at risk and the kinds of risks they may take.

This is not to say that police are prohibited from taking some risks that might place civilian lives in danger. For example, police are permitted to engage in high-speed pursuits though such pursuits can result in accidents where innocent bystanders are killed. But police are not permitted to engage in such pursuits, or any other activity, if they know civilians will be killed or seriously injured.[27] This means that police should seek to use the least force possible, and never in such a way will an innocent be harmed, as this would represent a breach of the peace their purpose is to serve.

The risks soldiers may place on noncombatants are also limited, but in a qualitatively different way. The deadly force that circumstances sometimes force soldiers to employ is justified by the fact their role is to defend innocents against aggression, thus fulfilling in part the moral obligation states have to protect their citizens. But if the defense of innocents is a moral imperative, then the intentional taking of innocent life must be morally prohibited. Thus while soldiers have the positive duty to protect their own civilians, they also have the negative moral duty not to intentionally harm civilians of other nations.

However, to effectively protect their own civilians, soldiers must seek to avoid risk. This is not simply prudential self-interest, but necessary if they are to sustain the operations necessary to end the war. As a general rule of thumb, the amount of long-range and indirect fire combatants can place on an objective is inversely proportional to the resistance they experience in taking it. For example, soldiers attempting to assault and urban area can greatly reduce their risk by using artillery and close air support to reduce to rubble buildings the enemy would use for cover. But, especially in densely populated areas, this is almost certainly going to result in deaths of civilians.

While such tactics reduces the risk to the combatants, they are often less discriminating and increase risk to noncombatants. However, by virtue of accepting their role, combatants obligate themselves to accept risks that noncombatants do not, regardless of the noncombatant’s nationality.[28] This obligation, however, is limited to some degree by the sometimes-competing obligation to accomplish missions that are necessary for combatants to protect the citizens of their state. If there were no such limits, then the ability of combatants to accomplish their missions would be severely undermined, as it would be possible for the enemy to use civilians as shields and render it impossible to prosecute the war in a moral fashion.[29] This would render the positive duty to defend innocent life illogical and morally self-defeating. Thus, combatants are not obligated to take so much risk that the mission will fail, nor are they obligated to take so much risk that it is certain their unit will not be able to continue the war effort. [30]

Since the amount of obligated risk is limited, it is then permissible for combatants to engage in courses of action in which they may unintentionally, but knowingly, harm civilians. But this too has its limits. Judgments about what constitutes the kinds of risk that may lead to mission failure are notoriously difficult to make. Thus if our ethical obligations ended at balancing risk to soldiers with risk to noncombatants, the potential for abuse would fatally undermine the entire concept of noncombatant immunity as even well-meaning soldiers would be hard pressed to come up with reasons to take the safety of noncombatants into account. This is the logic of the soldiers in the opening example, who chose to employ weapons that could discriminate between combatants and noncombatants in the manner and conditions in which the soldiers employed them. This underscores the need for professionals who have the education and experience required to maintain the profession’s integrity and balance mission accomplishment with moral and legal restrictions. So while it makes sense to limit principle-based constraints on military necessity in this manner, we also have to recognize that these constraints are in tension and must be interpreted in the context of particular situations.

Essential to understanding just conduct in war, or jus in bello, are the concepts of proportionality and discrimination. As noted above, combatants may engage the enemy knowing, though not intending, harm to noncombatants and their property. However, just because this harm is unintended, it does not follow that it is not subject to moral limits.[31] The first of these limits is that the good achieved is proportional to the harm done. Second, as our discussion of noncombatant immunity demonstrated, combatants must discriminate among targets and avoid the killing noncombatants or destroying infrastructure that is necessary for the survival of civilians.[32] But though combatants should not harm noncombatants, it is a brutal reality of war that they do, no matter how careful and measured their use of force may be. Thus combatants must also discriminate among effects, and not take advantage of the harm they commit. This means in the enemy model, soldiers may minimize risk using the most force permissible, given the restrictions of proportionality and discrimination.

Fig 2: Force vs. Risk

Fig 2: Force vs Risk: In this figure the black line illustrates the inverse force vs. risk relationship that exists for police and military personnel. The more force they use, roughly speaking, the less risk to themselves. The solid black line represents the range of permissible uses of force under both criminal and enemy models. When so much force is used that bystanders would knowingly be harmed (marked by the yellow star) then increased use of force is no longer permissible under the criminal model, represented by the dashed line. When so much force is used that it violates jus in bello constraints of proportionality and discrimination (marked by the red star) then increased use of force would be impermissible under either the criminal or the enemy model, represented by the dotted line.

The blue line illustrates the direct relationship between the use of force by military and police personnel and increased risk to noncombatants. The solid represents acceptable risk in peace and war, the dashed line acceptable risk in war, and the dotted line risk that is never acceptable.

The arrows left of the intersection of the two lines, marked by the yellow star, indicate that, in peace one should only use the least force possible. The arrows to the right of the intersection indicate that in war, one is permitted to use the most force permissible

Application of Proportionality and Discrimination in Complex Environments:

Proportionality and discrimination require combatants not only to minimize the deaths of noncombatants, but also to make a positive commitment to preserving noncombatant lives by not exploiting the harm they do and assuming additional risk to minimize that harm in the first place. However, application of these provisions in complex contingencies is not clear and this has generated a great deal of discussion and confusion as soldiers attempt to apply an ethic that evolved to deal with enemies in environments where there may not be any.

According to a Human Rights Watch Report, more than twenty civilians were killed in Baghdad between 1 May and 30 September, after major combat operations ended, under “questionable” circumstances. According to the report:

“The individual cases of civilian deaths documented in this report reveal a pattern by US forces of over-aggressive tactics, indiscriminate shooting in residential areas and a quick reliance on lethal force. In some cases, US forces faced a real threat, which gave them the right to respond with force. But that response was sometimes disproportionate to the threat or inadequately targeted, thereby harming civilians or putting them at risk.”[33]

While some of this criticism may be justified, what the HRW report fails to take into account is that much of what it criticizes is not prohibited by the war convention. But in applying an ethic developed for war in environments other-than-war, members of the military risk undermining what peace they may have established as well as the moral purpose the major combat operations served. While the transition from war to peace has always been a complicated process, it is much more so for complex contingencies. The implications of fourth generation warfare suggest that simply defeating Saddam’s conventional forces has not ended the fight and that the participation of Islamic terrorists suggest the consequences of losing risks far more than restoration of the political sovereignty and territorial integrity of Iraq. Should Iraq or Afghanistan become a haven for international Islamic terrorists, then the political sovereignty and territorial integrity of the United States is at risk as well.

The HRW report argues that the problem Coalition forces have is “attitudinal.” However, it is not the case that Coalition forces are not deeply concerned about noncombatant deaths and it is the case they routinely take actions to prevent them. The problem is better described as theoretical. Proportionality and discrimination, even though they constrain military necessity would permit harm to civilians. What is needed then is to modify our understanding of these restraints in a way that incorporates the ethical restrictions of the criminal model and provides a flexible, yet comprehensive moral framework for the application of military force.

Proportionality:

On 10 July 2003, Coalition forces shot and killed a man who was allegedly brandishing a gun in front of a police station. The first shot incapacitated him; the second killed him. In a separate incident, recorded for the Frontline episode, “Truth, War, and Consequences,” US soldiers in Baghdad, while exchanging fire with gunmen in a building, killed a bystander.[34] Given the soldiers were engaged in a legitimate operation, nothing about proportionality requires that Coalition forces have acted differently.[35] Yet these actions further isolated the Iraqi populace from Coalition forces, who they began to see as a threat. Domestically, when citizens see the police forces as a threat, breakdown of civil order is not far away, as evidenced in the 1992 LA riots mentioned earlier.

Applied to the above examples, proportionality is upheld in terms of civilian lives and property destroyed vs. enemy killed or captured, or operations impeded. However, what is not measured is the cost to the fragile peace the major combat operations achieved. This is because the law and morality of war do not presume a peace. This suggests that if one accepts that the conditions of peace hold, even if it is a fragile peace, then the criminal model will be the most appropriate to apply. This would mean once the man brandishing the gun in the first example above was incapacitated to the point it was possible to detain him the morally appropriate response was to arrest, not kill, him.

However, simply telling soldiers to behave more like police—which is appropriate in most peacekeeping situations—ignores the complex environment of the GWOT. By hiding among civilians, insurgents can avoid harm and thus continue their own operations since even with precision weapons some noncombatants will be harmed. This poses a serious problem in the context of fourth generation warfare. Cell phones and other means of communication can be easily replaced. Weapons and explosives are plentiful in Iraq. What is more difficult to replace are people who have the willingness and capability to conduct insurgent operations.

Therefore, one must not fall into the trap of calculating it in terms of noncombatant lives lost versus enemy lives taken. To the extent enemy activity itself represents a threat to the restoration of sovereignty, permissions associated with noncombatant casualties are going to be greater. In this case what matters is how much closer any particular operation will bring one to eliminating the threat. If certain key leaders are the essential to insurgents’ ability to conduct operations, then military leaders may need to consider this when determining how best to pursue them. In this kind of warfare, the number of civilian lives lost and property destroyed needs to measure against how much harm the targeted insurgent could do.

But this does not mean such permissions will be unlimited. If the insurgent target in question is relatively inconsequential, then proportionality requires US forces to forego engaging them. Thus, in the environment of complex contingencies, proportionality should be modified in the following way:

The harm to noncombatants and their property must be proportional to the desired military objective and measured against the threat to political sovereignty and territorial integrity; however, when the establishing a stable peace is no longer at risk, the bad effect must be measured against the threat individual life and liberty.

This also suggests is that military forces need to develop non-lethal means of dealing with the insurgent threat. This means not only should military forces be trained in law-enforcement techniques but they should also have available to them non-lethal weapons in order to lower the cost to lives and property of conducting counter-insurgent operations.

Discrimination of targets:

As noted earlier, it is morally self-defeating to intentionally kill noncombatants. For this reason, combatants must discriminate between enemy combatants who represent a threat and noncombatants who do not. Thus while combatants may engage in courses of action in which noncombatants may be killed, they cannot intend those deaths to occur. However, in complex contingencies, not only can it be difficult to distinguish combatant from noncombatant, it is also difficult to distinguish if harm to noncombatants will be permissible. This requires two levels of discrimination: 1) between targets and 2) acceptable risk to noncombatants and bystanders. If the threat is an enemy, in the technical sense discussed above, then some harm will be permissible as long as it is also proportional. If the threat is a criminal, then some risk of harm will be acceptable as long as it too is proportional. In the former, soldiers may foresee, but not intend the harm. In the latter, they may foresee, but not intend the risk.

The following example serves to illustrate the importance of this distinction. On 7 August, US soldiers in Baghdad fired on two cars they believed were trying to run a checkpoint. They killed the driver of the first car and the driver and three passengers in the second car. The driver of the first car was reportedly a student out visiting friends and the driver of the second car was a father and the three passengers were his children. According to the report, streetlights were out and the checkpoint was difficult to see. Survivors claimed not to realize they were near a check- point before being fired upon. In the case of the second car, it is not clear there was a warning.[36]

In the above examples, the deaths of noncombatants were certainly unintended –the soldiers manning the checkpoints were simply dealing with a threatening situation in accordance with their rules of engagement. Given the nature of combat at the time, there was no way, in principle, for the soldiers to tell if the individuals in the cars were civilians or Saddam’s Fedayeen. But if one accepted that the conditions of peace hold, then noncombatant deaths must not only be unintended, they may not knowingly be permitted. This means soldiers must take extra precautions to ensure risks to civilians is minimized by, for example, marking checkpoints (in this case) and ensuring warnings are heard and that soldiers are trained and capable of employing alternate nonviolent means to stop suspected insurgents and criminals.

Thus in complex contingencies, the jus in bello provision of discrimination should be modified to read: Combatants must discriminate between enemy combatants and noncombatants and not intend harm to the latter. When establishing peace is no longer at risk, Harm done to noncombatants must be unintended, and when establishing peace is no longer at risk, harms must be prohibited. This had broad implications for training, organization, and employment of armed forces which need to be addressed before the conduct of operations commence. Failure to do so, could itself represent an ethical failing. It is not morally sufficient to place soldiers in harms way without the resources to conduct themselves ethically.

In addition to discerning whether it is permissible to engage a particular target, soldiers must also discern whether it is permissible to risk harm to civilians when doing so. During operations in Bosnia in early 1996, US troops on patrol were fired on by what turned out to be a lone, disgruntled Bosnian. Though they did not know this at the time, the soldiers chose not to return fire, which could have harmed noncombatants. Because they held their fire, neighbors apprehended the gunman and turned him over to authorities; but in the aftermath, the soldiers were both criticized and praised for the decision they made. Some argued that by failing to send a clear and decisive signal to all the factions that NATO forces would impose peace, even at a cost to civilian lives if necessary, the soldiers had sent a clear signal that it was now “open season on IFOR.”[37]

In Iraq, beginning in November, the US bombed and bulldozed houses and other buildings suspected of harboring anti-Coalition forces. The purpose, according to a Time Magazine report, was to send a message to the local population and intimidate those who have made the area notoriously permissive to the insurgents.” [38]According to a separate press article, US forces dropped 500-pound bombs outside the Sunni stronghold of Tikrit as a warning to its residents not to support insurgents who had, hours earlier, shot down a Black Hawk helicopter killing six soldiers. While it succeeded in scaring residents, it “only confirmed for many that the United States is their enemy.”[39]

While it is certainly permissible to fire on a gunman shooting at you or destroy facilities used by insurgents, even if they are not in them at the time, placing civilians in harm’s way to “send messages” to intimidate the populace would violate soldiers’ obligations to discriminate in terms of targets as well as harms. However, it is important to note that when insurgents use populated areas as cover for their operations, they put civilians at risk and thus bear at least some responsibility for any harm. Further, to the extent civilians consent to insurgent operations, even if they are not active participants, they too bear some responsibility for this risk. This does not diminish the responsibility members of the military to avoid, much less intend, harm to noncombatants and bystanders; however, it does beg the question what permissions the military has, especially if the war model applies.[40] If the insurgent threat is capable of conducting war, then targeting their facilities is permissible, even if it intimidates the local populace. However, if the conditions of peace hold, then such tactics will more likely threaten life and liberty and disrupt the peace rather than maintain it. In this case, such tactics should be prohibited. Under the war model, targeting the enemy and enemy facilities is permissible, regardless of whether it intimidates the population. Under the criminal model, targeting criminals and their facilities is permissible unless it intimidates the local population, who presumably have a right to the civic peace such intimidation violates.

Policy Implications:

Several policy implications follow from the above discussion.

1. Military professionals, Just War theorists, international lawyers, as well as others who rely on the various provisions of the war convention to form policy and law, need to apply the war and criminal models to extend theory and law to complex operations that involve multiple threats, which differ not only in capability, but also in kind.

2. Tactical and operational doctrine needs to be modified to acknowledge and describe the difference between criminal and enemy threats and then develop tactics, techniques and procedures to handle each.

3. In complex contingencies, the language of operations orders and rules of engagement must reflect the ethical demands of the environment. This would mean finding language that specifies if a particular operation, or parts of an operation, permit using the most force permissible or the least force possible or whether civilian casualties are permitted.

4. Develop and educate forces that are trained in law enforcement procedures and provide them with non-lethal weapons so soldiers have a wider range of options for applying the least force possible. This may include reconsidering whether certain weapons and ammunition currently not permitted for soldiers’ use, such as CS gas and “dum dum” bullets, should be permitted. Though they can have undesired effects, they too, give the soldiers a wider range of options for applying the least force possible.

5. Increase inter-operability training with civilian government and non-governmental organizations to increase the range of non-violent options available.

Conclusion:

US operations over the last decade are filled with stories of where Coalition forces restrained the use of force in order to preserve civilian lives, even when the law and morality of war did not require it. This author does not question the commitment of the military, as an institution, to upholding the principle of noncombatant immunity. However, what is lacking is a conceptual framework that accounts for how to apply the principle in the wide variety of environments members of the military find themselves—often within the scope of a single operation. This is necessary if we are to have consistency in the face of this complexity.

What also follows from this discussion is that it will not always be clear what threat soldiers are facing, which means it will be up to military professionals to rely on their experience and judgment to discern which approach, criminal or enemy, is appropriate to apply. This underscores the need for a professional education curriculum that accounts for the demands of both models. Further, while the discussion of proportionality and discrimination was meant to suggest the kinds of obligations, permissions and prohibitions that exist regarding the use of military force in complex contingencies, it is by no means complete. The restoration of civic peace is not only a job for the military and more work needs to be done to build a comprehensive approach that draws on the professional resources and experience of civilian institutions which are necessary for creating the conditions for civic peace.

Some may argue that placing such constraints on fighting a deadly enemy needlessly and irresponsibly restrains soldiers from pursuing courses of action that allow them to effectively to protect themselves, as well as the civilians they are sworn to defend. But it is also true that prosecuting a war in a way that violates our own values risks undermining the political will necessary to successfully see the war to a successful end. Coalition forces should pursue an aggressive policy by which they engage insurgents and terrorists wherever and whenever they find them. But they must also must recognize when violations of individuals’ right to life and liberty is not permissible and restrain the use of force accordingly.

This requires policies and procedures that recognize necessity must be constrained and interpreted in different ways, depending on the situation in which it is applied. In some cases it means using the most force permissible, given the restrictions of proportionality and discrimination. In others, it means using the least possible and never in such a way that civilians are knowingly put at risk. Furthermore, even if in particular situations conforming to moral obligations leads to restraint and perhaps missed opportunities, this may be the short-term price to pay in order to gain the long-term benefit maintaining the moral high-ground brings.[41]

NOTES