Peacekeeping and the Just War Tradition
BY:
MAJ Charles A. Pfaff
Department of English
United States Military
Academy
West Point, NY 10996
914-938-4363
Introduction:
For most people, considerations about the use of
deadly force are most commonly and readily thought of as turning on questions
such as whether and in what circumstances (if ever) it is permissible to deploy
such means. However, in the case of soldiers, we presume that deadly force is a
legitimate and often relied upon means to their chosen end. It is, in fact,
part of our very conception of what soldiers are and what they do that they
rely on and face deadly force in order to realize their objectives. This much
is uncontroversial and in some sense obvious. Nevertheless, even if we grant
this, it may still not be clear that from the soldier’s point of view the issue
of deadly force is not primarily a matter of how much force should be used. Rather, soldiers most
commonly and readily think in terms of how much force can they use.
When soldiers consider how to accomplish their ends,
they are legally, morally, and pragmatically obligated to consider how much
force[1]
to use. However, when deciding how much force to use, soldiers initially
concern themselves not with how much force should they use, but rather how much
can they. The more indirect and long range direct fire one can put on an
objective before one must put soldiers on it saves soldiers’ lives. The more
powerful weapons those soldiers have when they are on the objective also
preserves their lives. Thus, the more force soldiers apply, the less risk they
have to take in order to accomplish their missions. Viewed this way, what
soldiers understand as the amount of force necessary then consists in that
which reduces risks to soldiers the most. Sometimes, however, the application
of this force endangers civilian lives and property. Because of this, soldiers
must also ask how much force should
they apply.
In order to limit the misery caused by war, the law
and morality of war attempt to answer the question of “how much” by requiring
soldiers to consider certain rules, principles, and consequences that may
restrain the amount of force they may apply.[2]
To determine how much force they should place on an objective, soldiers must
temper their judgments not only with the pragmatic concern of how much is
practical, but also with the moral and legal concern of protecting civilian
lives and property. A commander may be able, with a high degree of accuracy, to
place a single bomb in a specific building, but he cannot always be sure how
many civilian lives will be lost if he does so. And though there is nothing in
the law or morality of war that absolutely prohibits him from doing so, he is
morally and legally required to take the due care he owes civilians into
account when deciding how much and what kind of force he will use. Taking this
into account, though, often means lowering the amount of force soldiers may
want to apply in order to minimize risk. This means, then, that there is a
tension between the amount of due care commanders owe civilians and the amount
of due risk they and their soldiers are expected to take in order to accomplish
military missions.[3]
Given the logic of warfare, it is always in the commander’s interest to place as much force as is morally and legally permissible on any particular objective in order to preserve soldiers’ lives. This means when commanders and their soldiers determine what is necessary, they are always asking themselves how much force is allowable, not how little is possible. This is because what is necessary when resolving the tension between due care and due risk is minimizing risk, not force. The most force then becomes the necessary force since it is what is necessary to preserve soldiers’ lives without violating the law or morality of war. What I wish to argue in this paper is that sometimes and in some situations soldiers are morally obligated to consider the least force possible—given that this force is sufficient to accomplish the mission—when deciding how much force is necessary to apply. If this last view is true, then it is the case that the law and morality of war do not extend well into certain kinds of missions. What I wish to do in this paper is show that this is in fact the case, and then offer some considerations for filling in this ethical gap.
To fully demonstrate this point, I will do several distinct but related things. First, I will demonstrate that the moral and legal considerations soldiers must take into account really do obligate them only to consider the maximum force permissible, rather than the minimum force possible. Next, I will offer an example of the application of military force that will meet the criteria of both the law and morality of war, but which will not conform to a broader understanding of morality. I will then employ a domestic analogy to show that this discrepancy is a result of a very important misconception about how the roles soldiers play alter their moral obligations. What I hope to show is that when the traditional role of the soldier is conflated with the traditional role of the police officer, moral (as well as pragmatic) confusion results. Finally, I will offer ways to extend the Just War Tradition so that it resolves the confusion created by this conflation.
Legal and Moral
Considerations:
Soldiers do have a legal obligation to take into account the damage that will be done to civilian life and property when they apply force. When the duly appointed representatives of a nation agree to ratify a treaty, the nation, including the individuals subject to its laws, become subject to the provisions of that treaty.[4] For this reason, soldiers belonging to nations that have signed international treaties regarding proper conduct in war are legally obligated to consider those provisions when applying force. The provision that most directly applies to the application of force is that provision that deals with proportionality. According to the Law of War, soldiers are obligated to ensure
…loss of life and damage to property incidental to attacks must not be
excessive in relation to the concrete and direct military advantage expected to
be gained. Those who plan or decide upon an attack, therefore, must take all
reasonable steps to ensure not only that the objectives are identified as
military objectives or defended places . . . but also that these objectives may
be attacked without probable losses in lives and damage to property
disproportionate to the military advantage anticipated[5].
While this can require soldiers to limit force by the constraint of how much military advantage is to be gained, it does not require them to minimize it. Furthermore, proportionality does not preclude some actions that many would still find objectionable. For example, it would not preclude killing some civilians in order to achieve any military objective, as long as the harm done was proportional to the advantage gained. Take for example the situation at No Gun Ri, where American soldiers are accused of intentionally killing hundreds of civilians in the beginning moments of the Korean War. Some of the arguments advanced to justify their actions have been that killing the civilians was necessary to prevent the greater harm of allowing enemy agents and soldiers through friendly lines.[6]
Although the letter of the law may not prohibit all acts we would like to call immoral, the spirit of the law does, and that spirit is found in the Just War Tradition. The Just War Tradition is that body of thought that represents man’s struggle with the tension between winning and fighting well. Since it has a long and deep history, it is difficult to make general comments regarding its content. To illustrate my point; however, I have chosen one of the more recent, and most restrictive versions of the ancient doctrine of double effect.
The doctrine of double effect is a Christian doctrine first formulated by St. Thomas Aquinas as a response to St. Augustine’s moral prohibition against self-defense.[7] This doctrine results from the recognition that there is a moral difference between the consequences of our actions that we intend and those we do not intend, but still foresee. Thus, according to this doctrine, it is permissible to perform a good act that has bad consequences, if certain other conditions hold. Those conditions are: 1) the bad effect is unintended, 2) the bad effect is proportional to the desired military objective 3) the bad effect is not a direct means to the good effect and 4) actions are taken to minimize the foreseeable bad effects, even if it means accepting an increased risk to soldiers.[8]
Double effect could further restrain how much force is permissible, and would preclude the soldiers’ actions at No Gun Ri. However, it does not require soldiers to understand necessity in terms of the least amount of force one can use and still accomplish the desired end.[9] What I would like to discuss now is why that can be a problem in certain kinds of military operations.
An Example of
the Application of Military Force:
Now that I have made the case that the law and morality of war only obligate soldiers to consider the most force permissible, rather than least possible, I now need to show that this causes a problem for extending these doctrines into the peacekeeping environments. It is not the case that I am arguing that soldiers are always obligated to consider the least amount of necessary. Sometimes, certainly in conflicts we would normally call wars, it is appropriate for commanders to consider the most amount of force that is legally and morally permissible so that they may better preserve soldiers’ lives. This approach, however, makes it difficult to extend current legal and moral doctrine to the peacekeeping environment. To understand why, consider the following example:
On 21 January 1996, an AK-47 let loose near a US dismounted patrol in the Zone of Separation [between Bosnian Serbs and Bosnian Muslims]. As rounds ripped through the troop formation of D Company, 3d Battalion, 5th Cavalry, the soldiers realized that this fire was not celebratory and instinctively sought cover. Tumbling behind the protection of their overwatching M2 Bradley Fighting Vehicle, the patrol chambered rounds and brought their weapons off safe.[10]
From this point, the soldiers had at least three possible courses of action that cover the spectrum from assuming no risk at the expense of civilian lives to accepting too much risk at the expense of accomplishing the mission:[11]
1) Use the Bradley 25 mm main gun and fire in the direction of the gunman. This would cause the most damage and most likely result in the death of gunman as well as some others (if there were any) in the building. This would pose the least amount of risk to the soldiers.
2) Leave cover and, using squad fire and maneuver techniques, assault the gunman’s position. As long as they only fired at the gunman, this course of action posed the greatest risk to the soldiers, but would likely result in the least amount of civilian casualties.
3) Remain behind cover until a local authority of some sort took care of the gunman. In this course of action they accept no risk, but do no harm.
The example:
Legal and Moral Considerations:
According to the legally binding consideration of proportionality, the soldiers would be permitted to pursue any of those courses of action. If the harm is simply the death of the gunman and the destruction of some property and the military gain is that peace is maintained, a belligerent is eliminated, and soldiers lives are protected, it would be hard to argue that the first course of action, though it is the most destructive, would not be permitted.
Furthermore, even if it was likely that there were some civilians in the building, it is not clear at all that the soldiers would not be permitted to risk injuring or killing them. Unless the building was clearly marked “Hospital” or was obviously occupied by a number of civilians, any civilians inside would not enjoy any protection from the Law of War. Given that several soldiers’ lives could potentially be saved and given the added gain of eliminating the belligerent, the balance would tip in favor of permitting course of action one.
The choice is further complicated by the fact that the mission (maintaining the peace) depended to a large degree on how the people regarded the peacekeeping force. They could not appear too reluctant to use force, but neither could they afford to apply force too strongly—that would alienate subgroups and make their job more difficult and dangerous. In fact, it was the failure to properly balance this tension that led to the failure of the UN mission in Bosnia, which precipitated NATO’s involvement.[12] This, of course, made the application of proportionality particularly problematic because it allowed for a wide range of actions that could be justified because it is difficult to know, especially in war time, what the actual consequences of any action could be.
However, as I have argued before, legal considerations are not the only things that the soldiers must consider. They must also take into account moral considerations, which in this case are more restrictive. In addition to the condition of proportionality I have already discussed, double effect also holds that the bad effect must be unintended. In this case, the soldiers may plausibly argue they only wanted to eliminate the threat the gunman posed to them and to the peace. That others might be harmed would certainly be unintended, especially since the soldiers did not intend to be shot at.
Double effect also holds that the bad effect must not be a direct means to the good effect. In this case, even with course of action one, the soldiers are not destroying the building to stop the gunman nor are they putting civilians at risk as a means to stop the gunman. Thus, this condition would also hold.
Finally, soldiers must act to minimize the foreseeable bad effects, even if it means accepting an increased risk to themselves. This is the most restrictive element of this doctrine and may make it hard to justify course of action one. But even this condition has limits. Soldiers are not required to take risks that may lead to them not being able to accomplish the mission at hand or make it likely they will not retain enough fighting capacity to continue to accomplish additional missions.[13]
One way to resolve the tension of due care and due risk is to adopt a course of action where one assumes no risk and does no harm. Soldiers could always refuse to apply force when the possibility of civilian casualties exists and when any other course of action would place additional risk on the soldiers themselves. This would often be, however, at the expense of mission accomplishment. Thus such a refusal would be tantamount to refusing to accomplish a mission, and this is a course of action seldom available to the soldier. It is a legitimate question in the context of this scenario whether accepting no risk and doing no harm was, in fact, the best means to accomplish the mission. Perhaps this is in fact the case. Nonetheless, this would only be a permissible option if this were the case. What is the case is that soldiers are not permitted to resolve the tension by walking away from it. Soldiers have a prima facie obligation to accomplish properly assigned missions, and thus can only be obligated, under double effect, to consider the maximum permissible force, not the minimum possible force.
Thus in this situation, the maximum amount of force permissible would balance the additional risk inherent in course of action two with considerations of mission accomplishment. Again, the fog of war makes such judgments problematic. What the soldiers could not know was if there were other gunmen or what other weapons the gunman had. It was certainly conceivable that he could have been equipped with anti-tank weapons that could have damaged the Bradley. Also, it is not clear from the example how risky an assault from their current position was. If there were inadequate cover and concealment or if they would have had to remain exposed for long periods in order to get to the gunman, it is likely that this condition would also hold.
If any one of these considerations were true—and there would be no way for the soldiers at the time to know otherwise—then choosing course of action two over course of action one would no longer be morally obligatory. So again, the application of the Just War Tradition would not preclude choosing the most damaging and lethal of the possible courses of action. Thus, the law of war and the morality of war would permit the soldiers to eliminate the gunman, even if it meant killing civilians.
The Problem for
the JWT: An Argument by Analogy
Though named the Just War Tradition (JWT), the purpose of the morality of war and the laws derived from it can be more generally considered as a guide for soldiers’ judgments regarding the application of force across national boundaries. As such, it is appropriate to extend it to any situation outside national borders in which soldiers are involved. It takes the form that it does because it is based on the presumption that such force is applied in the absence of peace and that since there is no higher authority to which belligerent parties can appeal, is necessary to create peace. However, increasingly this decade the United Nations and NATO have applied force across national boundaries, not with the purpose of establishing the peace, but with the purpose of maintaining it. Thus, it makes sense to consider what it means to apply force across national boundaries in order to maintain, rather than create peace if we are to extend the Just War Tradition to such operations.[14]
In the example cited, the soldiers chose course of action three, the one that involved the least risk to themselves, the least harm to others, and, which some later argued, the most risk to mission accomplishment.[15] In fact, in the aftermath of the incident, the soldiers were both criticized and praised for the decision they made. Most of the debate revolved around determining the kind of operation they were engaged in.
Some argued that their purpose was to establish peace where there was none. 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."[16] Others argued that this was to maintain the peace established by the Dayton Accords.[17] They further pointed out that killing everyone who posed a threat, no matter how minimal that threat might be, would only serve to polarize the factions against IFOR and make maintaining the peace even more difficult.[18]
Certainly, when settling the issue of “should” there is a practical dimension to this situation that soldiers ought to consider. What the soldiers should do in this case does depend on what will most likely facilitate mission accomplishment. A problem does arise for our soldiers, however, in that it is not clear which course of action would do this because there was no agreement on what the mission really was. It is interesting to note, however, that pragmatically speaking, right or wrong depended on an accurate understanding of what purpose the soldiers in fact served. I would like to suggest that there is a moral analog to this practical conundrum.
While such ambiguity does make it difficult for soldiers to make certain practical decisions, as argued before, these are not the only considerations soldiers must make. Further, just as the judging the best course of action depends on settling the issue of ends, I also want to argue that as the ends change, so do to some degree the ethical requirements of the application of force.
If we look at this situation from the analogous position of the police officer, much of the moral ambiguity is cleared up. If a sniper were firing from a building that contained civilians, we would not likely claim that the police were morally permitted to use the maximum force allowable under the principles of proportionality or doctrine of double effect. Even if a sniper were likely to kill several people if he were allowed to remain in the building, it would still not be permissible to destroy the building, especially if by doing so innocent people were killed. Even in extreme cases, police would be obligated to try every possible course of action that precluded civilian casualties before they would be morally permitted to engage in a course of action that could potentially lead to civilian casualties. From the standpoint of the law and morality of war, this just is not the case.
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 even though such pursuits can and have resulted in accidents in which innocent bystanders have been killed. The difference is police are not permitted to engage in such pursuits, or any other activity in which they know civilians will be killed or seriously injured. [19] But, as I have discussed above, there are many conditions under which that would be permissible for soldiers.
Of course, it remains to be shown that the analogy is, in fact, appropriate. Soldiers, after all, protect the nation from external threats, while police protect it from internal ones. Soldiers traditionally fight wars; police traditionally protect the peace. It would seem unfair then to claim that moral truths from one professional ethic should then inform the other. Nonetheless, as soldiers find themselves more and more in situations where there is a peace, even though it may be a tenuous one, the military profession would do well to reconsider some of the principles upon which they base their legal and moral judgments.
When it is the case that there is no peace and that
it must be established, it only makes sense to think of applying as much force
as is permissible given the law and morality of war. This facilitates the
defeat of the enemy, and defeat of the enemy facilitates the reestablishment of
peace—the appropriate end of all wars. However, in peacekeeping situations the
peace exists. It may be tenuous, and as the above discussion indicates, not
always recognized, but it exists nonetheless.
When peace exists, people who break the
peace are more like criminals than soldiers in that they destroy the security
the rest of the society enjoys as a result of this state of peace. However,
because those who break the peace are more like criminals, they enjoy roughly
the same kinds of rights and protections that criminals generally enjoy—namely,
a presumption of innocence.
To underscore this point, as well as
underscore the gap between how police and military consider the application of
force, consider
the following example that occurred during the riots in Los Angeles in 1992:
Police officers responded to a
domestic dispute, accompanied by marines. They had just gone up to the door
when two shotgun birdshot rounds were fired through the door, hitting the
officers. One yelled `cover me!' to the marines, who then laid down a heavy
base of fire . . . The police officer had not meant `shoot' when he yelled
‘cover me’ to the marines. [He] meant . . . point your weapons and be prepared
to respond if necessary. However, the marines responded instantly in the
precise way they had been trained, where ‘cover me’ means provide me with cover
using firepower. . . . over two hundred bullets [were] fired into that house.[20]
The good news is that no one was hurt.
What is interesting about this example is that even in the face of mass
rioting, where peace and civil authority were tenuous and not always
recognized, it was still inappropriate, at least from the police point of view,
for the Marines to respond the way they did. At one level, such a response was
probably imprudent. At another, it was certainly immoral.[21]
If the morally appropriate end of the use of force is to maintain the peace, it
does not make sense, especially moral sense, to breach the peace in order to
preserve it. Though there was a riot in progress, the civilians in question
were not directly partaking in it. Though the peace was being disrupted
elsewhere, it was not being abandoned everywhere. Thus, the Marines responded
to a potential breach of the peace with an actual breach of the peace. This
would make them morally culpable for any further breaches of the peace their
actions engendered.[22]
Furthermore, while rioting may represent
a massive disruption of the peace, it is not the same as the destruction of the
peace. This of course begs the question regarding what to do in the face of large
angry mobs, who are obviously bent on disrupting, if not destroying, the peace.
It also begs the question regarding the differences between a mob and an army.
Given the way belligerents have conducted themselves in the Balkans, in Rwanda,
as well as in other ethnic conflicts, it is not always easy to tell.
Nonetheless, it does not seem that it
can ever be the case that police could be morally permitted to resort to deadly
force first, setting aside the presumed innocence of any suspect as well as the
right of innocent civilians not to be killed or severely injured. For it to be
moral for police to do this, it would have to be the case that where conditions
of peace do not exist or are tenuous at best, it would be appropriate for
police officers to adopt the law and morality of war to guide their actions. I
suggest, however, that this is never the case. Soldiers, when acting as
soldiers fight enemies; police, when acting as police protect citizens. They
may have to harm certain citizens in order to do so, but this can never be a
first resort.[23]
Now we might think of crime as an enemy,
but it is a different and probably dangerous thing for police forces to
consider as enemies any members of the community they are sworn to protect. To
understand the importance of this claim, it is important to understand the
significance of the enemy distinction. The political philosopher Carl Schmitt
labeled the enemy distinction “the utmost degree of intensity of . . .
separation.”[24] Enemies
represent the most intense threat there can be to the security of a community.
The presence of an enemy represents the absence of peace. As such, the enemy
becomes the class of persons it is permissible to kill since failure to defeat
or at least contain them would mean the loss of the community, and thus the
loss of peace. Since citizens, even ones suspected of committing a crime, enjoy
a presumption of innocence, they do not represent the same threat that enemies
do and thus do not belong to the class of persons it is permissible to kill.
Only when a citizen presents him or herself as a threat to other citizens may
police be permitted to use deadly force, and then only after they have tried
other means to apprehend the citizen peacefully.[25]
It is certainly the case that there is
room for judgment in both police and military applications of force. It may
seem as though police are merely further lowering the maximum amount of force
permissible, rather than applying the least necessary, so that they may afford
protection to a larger group of people than soldiers must. However, this is not
the case. There is a fundamental gap between the ranges of force permitted to
soldiers acting as soldiers and police acting as police, which results from a
difference in orientation regarding its application.
The gap exists because for soldiers the
application of force is oriented toward the upper limit allowable. This makes
sense since soldiers, when fighting enemies, are preventing the existential
negation of the community. Soldiers, when acting as soldiers, are permitted to
kill as a first resort and are permitted to engage in courses of actions that
will result in the certain death of civilians (as long as the provisions of the
doctrine of double effect hold) because if they do not, the security the community
enjoys may be lost. The problem arises when soldiers import an ethic designed
to deal with enemies into an environment where there are none.
For police the application of force is
oriented toward the least amount necessary. When police apply force against a
suspected perpetrator they are not permitted to use deadly force as a first
resort and never if it is the case that the perpetrator is not likely to harm
anyone, even if he or she is likely to evade capture otherwise. Furthermore, as
stated before, police are never permitted to engage in any action that, if by
doing so, will certainly or even very likely result in the death or serious
injury of a civilian. For a graphic representation of this distinction, see the
figures below:
Policeman’s
view:
less
more
Figure 1: Police are obligated to apply force with a view to using the least amount possible and still accomplish the desired end (e.g. preventing a violent criminal from escaping), never exceeding so much force that an innocent person will be seriously harmed. When deliberating on how much force to use, police are obligated to first consider using the amount of force represented by the “no less than” arrow and are prohibited from using more force than is represented by the “no more than” arrow.
Soldier’s
view:
less
more
Figure 2: Soldiers are obligated to apply force with a view to using no more than the most amount permissible (given other legal and moral considerations), even if an innocent person is likely to be seriously harmed. In this figure, the “no more than” arrow represents the most amount of force that complies with legal and moral restrictions, but poses the least risk to soldiers. They are, of course not obligated to use this maximum force, as they are free to take more risk than may be morally required. However, they are not obligated to engage in a course of action where they apply so little force that they fail the mission or render themselves incapable of conducting future operations.
Now it is the case that the rules of
engagement for the mission in Bosnia included the provision, “to ‘use only the
minimum force necessary to defend yourself.’" These rules also included
additional provisions that restricted soldiers’ authority to return deadly
fire. "You may open fire against an individual who fires or aims his
weapon at you, friendly forces, or persons with designated special status under
your protection."[26]
But while this certainly reduced the amount of force permissible, it did not
require the minimum amount of force necessary.
While such rules are welcome, rules of
engagement do not supersede laws of war, but only clarify them.[27]
Thus, if someone violated this rule, they may be guilty of violating an order,
but they are not guilty of a war crime, or of transgressing the morality of
war. Furthermore, such rules do not require soldiers to change the way they
think about the application of force. They may lower the bar further, but they
do not require soldiers to minimize it. There is nothing in these rules of
engagement that make it immoral for soldiers, when opening fire on individuals
who fire or aim their weapons at them or at others, from them engaging in a
course of action that would cause harm to innocent civilians.
Therefore, though these provisions in
the rules of engagement are a welcome addition, by themselves they are not
enough. In order to extend the law of war and by extension the morality of war
on which it is founded, we must understand that in military operations where
the goal is to maintain peace, applying the least amount of force necessary
must be understood as morally obligatory.
Extending the Just War Tradition
So for the military, where conditions of
peace exist, soldiers, like police, must consider what is the least amount of
force necessary, rather than what is the most amount of force permissible. If
there is a peace, even a tenuous one, it makes no sense to preserve it by
engaging in courses of action that breach it. Where there is peace, there may
be criminals who breach it, but they do not, by themselves, destroy it. It may
be true that police may harm criminals who will likely harm others, but it
makes no sense to harm those others in order to prevent the criminal from doing
so. To minimize the potential for harm to those others, those with the
authority to use force must use the least amount possible, rather than the most
amount permissible. It is not enough just to lower the bar. Those with the
authority to use force must, in fact, stand under it and resist any efforts to
reach it.
It is true that in many cases it is difficult for
commanders and soldiers to know if they are in a peace maintaining or peace
establishing operation. The discussion regarding the actions of 3-5 CAV was not
merely academic. Though labeled a peace maintaining operation, there were times
and places during the initial phases of the operation where it had all the
characteristics of a peace establishing operation. It is also interesting to
note that operations in Somalia fell under the doctrinal distinction of
“peacetime” which the Army defines as those operations that are routine actions
between nations.[28] This
clearly would fall under the category of peace maintaining, though to those
involved there were significant parts of the operation that were clearly peace
establishing.[29]
I would agree that such epistemic
difficulties make it difficult to apply the moral distinction I am
recommending. However, this does not invalidate it, nor does it render it
useless. Political leaders and senior commanders may label military operations
in certain ways because of political concerns or limitations in the doctrinal
vocabulary. But political and doctrinal distinctions do not map onto moral
ones. As the nature of an operation changes on the ground, commanders can
understand their moral obligations more clearly by understanding how the
condition of the state of peace in the area under their control should affect
their moral decision making.
Conclusion:
Many questions and issues remain. As I have pointed out, I have not settled the epistemic issue of how a commander can know if a state of peace exists. While I think it is entirely possible to settle this issue, until it is done, it will be difficult to know if an operation is peace maintaining or peace establishing. When this distinction is uncertain, it will be difficult for soldiers to discern their moral obligations regarding civilians and their property. But what I have suggested is that answering this question will have moral as well as political significance.
In addition, as the
police-Marine incident suggests, the actions that soldiers are trained to take
in war-fighting missions may be inappropriate in peace-keeping missions. They
have to do the right thing very quickly, without much time for
moral-philosophical reflection. This means that training soldiers to do the
right thing becomes more difficult. Should we train to fight wars, to keep
peace, or both? Is it realistic to think that we can teach soldiers to do both?
Do we increase the risk that they will be injured or killed in either type of
mission by training them for both? Should we have special military units for
peacekeeping missions, or would that be wasteful duplication? It is beyond the scope of
this paper to attempt an answer to these questions, though the argument does
suggest that it is important to do so.
What I have suggested is that as a region transitions from a state of nature to a state of peace, what it means morally to apply force also changes. This means when such a distinction can be made, soldiers are afforded a powerful conceptual tool for resolving the inherent conflict between the due care they owe civilians and the due risk they are obligated to take to achieve their objectives. By understanding the limits on necessity as applying the least amount of force possible rather than the most permissible under the principal of proportionality and the doctrine of double effect, soldiers avoid the contradictory and self-defeating practice of destroying the peace in order to preserve it.
Appendix:
The purpose of the law and morality of war is to prevent war and when that fails, limit the misery caused by war. In the paper, I discuss the law and morality of war as restraining the amount of force that can practically be applied in any given situation. While this is certainly the most natural way to understand these concepts, it is not always the most accurate. The relationship between the practical, legal and moral applications of force is much more complex than that. It is possible, for example, to have an application of force that is moral and practical, but not legal. It is also possible for the most amount force legally and morally permissible to also be impractical. In the following diagram, I attempt to illustrate the various categories of the application of force generated by the complex interaction of practical, legal, and moral concerns.
In this diagram, the lower left-hand circle represents, for any given situation, the most amount of force a soldier may legally apply. The lower right hand circle represents the most amount of force a soldier may morally apply and the upper circle represents the most amount of force a soldier may practically apply.[30] In this way, the diagram sums up the various judgments we can make regarding the application of force.
Practical AOF Moral
AOF Legal
AOF
.
8
*AOF= Application of Force
Region One: Some practical applications of force are neither legal nor moral. This region represents the
amount of force that a soldier can practically employ, but should not because
of legal and moral considerations. The events of My Lai serve as an obvious and
extreme example. However, many would argue that strategic bombing of civilian
targets that have no military significance whatsoever also falls into this
category.
Region Two: Some practical applications of force are legal, but not moral. This
region represents the amount of force that is both practical and legally
permissible, but not morally permissible. In the paper, I argued that COA 1 for
the 3-5 CAV soldiers as well as the actions of the marines during the LA riots
fell into this category. Another good illustration of this would be Sherman’s
drive to Atlanta. At the time, there was no law prohibiting the intentional and
wanton destruction of civilian property and lives, but I would argue that these
actions were immoral.[31]
Region Three: Some practical applications of force are both legal and moral. This region represents that amount of force that is practical and legally and morally permissible. This is where soldiers, sailors, airmen, and marines should endeavor to be at all times. Fortunately, as the paper suggests, there are also numerous examples in this category. The COA the soldiers of 3-5 CAV chose (COA 3) falls into this category. The issue for military leaders is to ensure that this is not accidental but is rather the result of intelligent, reflective leadership that ensures that soldiers, sailors, airmen, and marines understand the law and morality of war and can apply it.
Region Four: Some practical applications of force are moral, but not legal. This region represents the
amount of force that is practical and morally permissible, but legally
prohibited. Walzer describes such situations in his discussions of supreme
emergency in Just and Unjust Wars Ch
16. Under the doctrine of supreme emergency, it is sometimes morally
permissible to set aside the laws of war when the threat of defeat is both
imminent and the defeat itself represents slavery or genocide, or some other
catastrophe of similar magnitude, for the defeated. Thus it was morally
permissible under this doctrine for the British to bomb civilian targets during
WWII prior to 1942, when they were the only nation resisting the Nazis because
a Nazi victory would in fact result in slavery and genocide for millions. But
it would not have been permissible for the Argentineans to have strategically
bombed civilian targets in London or the Falklands during the war in the
Falkland Islands since their defeat did not represent slavery, genocide, or
some other like consequence.
Region Five: Some applications of force are legal but are neither practical nor
moral. This
region represents a condition where the law of war does not prohibit a course
of action, it is just the case that it is not practical for the belligerent
party in question to carry it out. Certain uses of tactical nuclear weapons
would fall into this category. Such weapons are not outlawed, but given the
likelihood that their use could lead to a nuclear holocaust, their use is not
practical. Furthermore, since a nuclear holocaust is immoral, any action
directly leading to it would also be immoral.[32]
Region Six: Some applications of force are legal and moral, but not practical. If we accept the doctrine
of invincible ignorance[33]
and agree that soldiers are not morally responsible for the wars they fight,
then this would describe many situations the German Army found itself in after
the Stalingrad and D-Day. There were many instances where they would have
morally and legally permitted to use more force than they could at the time.
From a moral perspective, I should note that this category is problematic since
according to Kant ought implies can. But recall that practical
considerations take into account many factors, not just what can be done. For example, it may not
have been practical for Hitler to order the German Army to hold Stalingrad at
all costs or to launch the offensive in the Ardennes in 1944, but it is obvious
it could be done. The interesting thing about these cases is that they
represent instances where practical considerations, not legal and moral ones,
limit the amount of force soldiers should apply.
Region Seven: Some applications of force are moral, but neither legal nor practical. This region represents the
amount of force that would be permitted by the doctrine of supreme emergency,
but which would not be available. Had the British not been able to bomb German
civilians prior to 1942, England would have found herself in this unfortunate
position.
Region Eight: Some applications of force are neither practical, legal, nor moral. On the surface this category would hardly seem worth mentioning since it seems to represent a null set. However, rather than being empty, this category can be, and has been, filled with many weapons development projects. The development of biological weapons is one example that comes to mind. Such weapons are neither moral nor legal, and given the adverse effects they can have on friendly forces and civilian populations, as well enemy ones, they are also not practical. This is the category that those who are charged with developing the weapons systems of the future should avoid.
While this has been meant to be a fairly comprehensive list of the different categories of the application of force, it is by no means a complete discussion. Much more can be said about the examples used to illustrate each category as well as the categories themselves. Nonetheless, I hope this discussion illustrates how these categories can be applied to aid the decision making process military people must go through when deciding, in any given situation, how much force they should use.