Dilemmas involving non-combatant immunity stem from dual moral obligations accruing to warfighters in a just war

The Moral Case for Improved Technology, Training and Intelligence

Michael Skerker

Dilemmas involving non-combatant immunity stem from the dual moral obligations accruing to warfighters in a just war. A warfighter's right of self-defense and right to protect others from attack sanction his use of force against attackers. Force may not be used against those who are not attackers. Practical exigencies may make fully meeting both obligations—protecting self, comrades and native citizens, and deferring to the rights' of foreign noncombatants—impossible since actions pursuant to the first obligation may involve side-effects abridging the second obligation, or vice versa. The doctrine of double effect allows that otherwise licit actions may be performed when actions without the foreseen, negative side-effects are not possible—which is another way of saying the good and bad effects of the contested action are inseparable—and the good done by the action outweighs the bad. The doctrine allows for the first protective obligation to be fulfilled when it is in certain or possible tension with the second deferential obligation, and the value preserved by the first obligation is greater.

Double effect is often formulated with reference to the unintended nature of the negative side effects, though in the case of collateral damage, this prompts the reasonable question of what difference the agent's subjective intention makes to the maimed or killed civilian. Intention is salient for just war theory because of its practical implications when there are tactical options with varying collateral damage forecasts;[1] it has such practical implications if intention is understood, with Anscombe, to entail foresight and desire. I intend something if I both anticipate, and want it to happen; having anticipated the end of my action, I would not alter my action in any way to change its outcome. That a just warfighter foresees, but does not intend civilian deaths in a particular operation then implies that he would adopt an alternate tactic if so doing would achieve the same tactical end without the civilian casualties. Given such options, the self-consistent, just warfighter presumptively (barring other considerations for now) ought choose the tactic without the likelihood of collateral damage. Assuming the warfighter's actions are deliberate, an action that can be justified by double effect must be the one most consistent with his desire to achieve his military objective without civilian casualties: that is, among tactically efficacious actions, the one incurring the smallest amount of collateral damage.[2] If there was no choice of tactics, then intention is immaterial to double effect, and the only question concerns the action's proportionality. If there was a choice of tactics, and the more damaging option was chosen, the agent's profession of non-intention is unconvincing: he had a choice, and while supposedly desiring the lesser of two evils, chose the greater among them. We can derive a presumptive imperative from this definition of just actions applied from the doctrine of double effect. In situations where one's protective and deferential obligations are in tension, the just action is the tactically effective action with the fewest negative side effects.

What can be said about the range of tactical options? Is it a brute fact of the moral landscape or something to which our just principle can be applied? In any context, moral expectation is limited to what it is possible for an agent to know and to do. We do not fault a soldier for failing to aim away from noncombatants he could not see hiding behind a wall, nor fault a soldier for inadvertently shooting a civilian in a firefight initiated by guerillas in a residential area, nor for using a larger caliber weapon than was proportionately necessary when it was the only weapon available to him. Yet examples like these prompt the question of whether what was possible for the particular agent is all that should have been possible for that agent. We may wonder for instance, if intelligence was available pointing to the guerillas' plans; we want to know if the soldier was adequately armed. Similarly, we do not fault soldiers for defending themselves against car bombs, but feel that there is something wrong when lethal force is used to stop a civilian vehicle before soldiers know who is inside. There is a sense that there must be some other tool for this job, or some more effective way to warn civilians to stay off the roads. Likewise, we feel something morally stupid has occurred when language barriers lead to lethal encounters between warfighters and civilians.

I wish to argue that the set of tactical and technological possibilities open to a force in a general span of time ought not be viewed as a brute fact which permanently forces a compromise in the observation of noncombatants' rights.[3]

Since the degree to which one successfully is able to meet the protective obligation without abridging the deferential one is a matter of practical exigencies alone, there is no reason to accept the current limitations of tactical knowledge and action as a constant in our moral calculus. As a matter of fact, the practical exigencies of equippage, training, and intelligence force us to compromise to a given extent on our deferential obligation to noncombatants in order to fulfill our protective obligation—with smart bombs, contemporary aviators for instance, have to compromise less than their world war Two predeccessors—but there is no moral reason this compromise ought to be where it is. Privileging the protective obligation is basic to just war theory (privileging the deferential obligation over the protective one is basic to pacifism), but balancing the two obligations need not be a zero sum endeavor. Being more discriminating with respect to civilians does not necessarily equal warfighters' being less dutiful in force protection and in fulfilling their legitimate military objectives. To the extent that this trade-off is presently true, follows from present limitations in technology, equippage, training and intelligence. Since the obligation not to use force against non-combatants is always exerting its moral pull—always demanding complete recognition—we ought not treat any particular set of practical exigencies as a brute fact but one which we are obligated to remediate by directing money and time toward better intelligence, the development and deployment of more discriminatory equipment, and the training in their use. A nation's defense establishment should constantly strive to innovate more discriminatory tactics and technology conducive to more discriminatory and proportionate use, and to train warfighters in their exploitation. Once these weapons or intelligence-gathering tools are available, there is a moral case for their use, even if such use comes at a greater cost than would be incurred by less precise weapons or tools. Intelligence assets ought to be directed to learn not only where military targets are, but where they are not: areas where noncombatants reside, and the ways in which the enemy may attempt to draw noncombatants into the line of fire.

To answer the question of the degree of risk it is appropriate to take in respecting noncombatant immunity, I agree with Walzer that warfighters need to take on some risk to protect noncombatants—in effect, making good on their intention not to harm them—set roughly at a point where mission success would not be compromised. It is a part of their distinction as professionals that they use force in a disciplined manner, in an attempt to direct it only at those themselves bearing lethal force. By the same token, a nation ought be willing to accept the greater costs associated with fighting wars with the most discriminatory and proportionate tools and tactics available (with a limit set at a cost consistent with overall success in the war and ability to fight new ones with whatever speed is thought appropriate given current threat levels).

This view also prompts an emendation to the standard criteria for the justification of noncombatant casualties. It is not enough to justify noncombatant deaths incurred during an attack on a legitimate military target by an appeal to the tactical options that happened to be available to commanders at the scene. While the actions of frontline warfighters are to be justified with respect to the tools, training, and intelligence they have been given, the overall provisioning and training of troops, as well as intelligence operations, can be criticized from a moral perspective if such provisioning fails to provide warfighters with as wide a sphere of tactical options as currently possible (for a particular nation or bloc). In order for the killing of noncombatants to be considered licit in a just war, the killing has to be in service of a tactical end valuable enough to (in some way) outweigh the disvalue of the noncombatant deaths, and the deaths have to be unintended (even if foreseen). In this sense, non-combatant deaths can only truly be considered unintended, and therefore, given the other criteria, justifiable by the doctrine of double effect, if consequent to tactics posing the least risk to noncombatants among possible mission-adequate options. In foreseeable tactical situations where noncombatants will be mixed with combatants, or where military targets are secreted in residential areas, noncombatant casualties are not justifiable when their deaths or injuries could have been avoided had warfighters been equipped with different (available) tools. The same applies to noncombatant deaths that occur in foreseeable situations due to insufficient, or inappropriate training.

I'll now try to draw some lessons from recent conflicts, with an eye to possible future engagements with respect to the moral case for improved equipment, training, and intelligence. Morally problematic situations arose last spring in Iraq in situations where guerilla fighters attacked Coalition troops while surrounded by civilians, where lethal force was used to stop civilian vehicles at checkpoints, in the use of cluster bombs, where troops were thrust into policing duties for which they had not been trained, and where they were unable to communicate with Iraqi civilians.

American troops faced guerilla tactics similar to those used in Iraq in Somalia. The notion that conventionally weaker opponents will take advantage of American troops' adherence to the laws of war by interspersing among civilians is noted in various training manuals.[4] Given the known deterioration of Iraq's conventional military forces, the lesson presumably imparted to the Iraqi military regarding American dominance in open terrain, the intervening example of American force's tactical limitations in Mogadishu, and the Baathist regime's oft-displayed indifference to its own people, it might have been presumed that the Iraqi regime would adopt unconventional means of warfighting. It was presumed they would use unconventional weapons, but apparently not unconventional tactics.[5] The organization and pervasiveness of the Sadaam Fedeyeen, suggested an Iraqi asset of such significant size, that some intelligence asset should have noticed it. At any rate, it would be reasonable to assume now that future adversaries will employ similar tactics. It is then indicated to stress attacks of this sort in training exercises. Intelligence suggesting the presence or possibility of guerilla fighters in residential areas would indicate tactical commanders lead convoys around such areas, if at all possible. As avoidance will not always be feasible, there is a need for the continued development and deployment of non-lethal weapons meant to disperse crowds (presumably determined attackers would be the people not running away). While the VMADS, a high-powered microwave device that causes intense burning sensations without permanent injury, is relatively far along in the development pipeline, there are numerous extant measures including batons, shields, non-lethal rounds, OC gas and smoke that have been effectively utilized by U.S. forces in Kosovo, Operation United Shield (the U.S. protected U.N. pull-out of Somalia), and Iraqi Freedom, and are currently deployed in capability sets to some Marine and Army units—these measures should likely be further deployed and troops be regularly trained in their use. (There is a Small Unit Leaders Trainer at the Marine Corps Warfighting Laboratory.)

Training should also include stopping cars at a safe distance at check points. While some accounts of incidents involving suspicious civilian vehicles indicate troops firing warning shots and attempting to stop the vehicle with disabling shots to its engine blocks, this didn't work consistently. As many noted, a frightened civilian cannot be counted on to distinguish warning shots from other volleys, nor to perceive where dangerous and safe paths lay. What would be desirable would be a measure to stop vehicles without kinetic energy, shorting out its electrical system through high-powered microwaves—there is a current classified project of this nature that reportedly shows promise. At present, portable barriers should be more widely utilized, particularly those light enough (i.e. not necessitating a flatbed and crane like Jersey barriers) to be rapidly deployed in arising situations. There is also a need for the further development and deployment of devices that can temporarily short out or detonate any explosives the vehicle or individual might be carrying, a safe distance away from soldiers. The former would be preferable in residential areas, lest the would be suicide bomber detonate near civilians. The CIA and Israeli military, respectively, have been working on these technologies—both of which were apparently useful recently in thwarting assassination attempts on Pakistani President Musharref.

The high dud rate of bomblets makes the use of cluster bombs in populated areas problematic. As many have noted, the 5-10% of unexploded bomblets function as de facto mines, killing and maiming noncombatants. Would it be feasible for bomblets to have secondary fuses? If so they ought to be utilized when civilians are at risk; if not, conventional cluster bombs ought not be used when civilians are in the proximity. By the same token, smart mines that can be remote detonated should be considered—there the technological problem probably being a design that enabled the mine-laying force to detonate the mines at their choosing, but precluded the enemy's detonating them at their convenience.

The degree to which non-lethal weapons have been successfully fielded and used is largely due to the efforts of the Joint Non Lethal Weapons Directorate (JNLWD) in the DOD, which has coordinated research into NLWs since the mid-90s. The JNLWD is largely dependent on the Services for R & D and procurement dollars (the absence of which prevents contractors from taking an interest in R & D); after initial success adapting extant law enforcement technologies for military use, the pace of research and development for NLWs and associated tactics has slowed considerably. The JNLWD needs to be much better funded and given end to end control over research and procurement; the former at least can perhaps be accomplished through contracts with DARPA and the national labs. (cf. National Research Council. An Assessment of Non-Lethal Weapons Science and Technology, (Washington, D.C.: Nat. Academies Press, 2003) )

Numerous manuals predict the increasing frequency of urban combat for America and its allies. While by most accounts, Coalition troops handled the actual combat in and around Iraqi cities with skill and honor, the repeated refrain heard in the immediate aftermath of combat operations—looting, revenge killings, and the breakdown of municipal services, was "I wasn't trained for this." Given that troops will encounter civilians during and immediately after the fighting, the introduction of civilian affairs and military police immediately after the fighting needs to be stream-lined, or regular infantry and expeditionary units need to be given at least rudimentary training in these duties, and need the best intelligence available with respect to what they can expect in terms of civilian needs.

Similarly, troops complained about problems occasioned by the language gap. Some had handheld devices that spat out helpful phrases. If those were effective, they should be widely distributed. Given the length of time that Iraq as well as other Middle Eastern nations—has been our enemy or probably enemy, the lack of Arabic, Farsi and Urdu speakers in the defense and intelligence communities is an embarrassment. It shouldn't have taken 9/11 to send agencies scrambling to find speakers of Near Eastern languages. We had plenty of Russian speakers during the cold war. It does not seem unreasonable that troops be taught a few pertinant phrases—even on the plane ride over. Though they need to be correct. Apparently some troops were instructed how to say halt in Arabic. They were taught to say "cough" though "halt" in Arabic is "kif."

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