BEYOND PRECISION:
Issues of Morality and
Decision Making in Minimizing
Collateral Casualties
by
Lt Col Dwight A. Roblyer
United States Air Force
National Defense Fellow
Program in Arms Control, Disarmament, and International
Security
University of Illinois, Urbana-Champaign
A Research Report Submitted
to the
Air Force Institute for National Security Studies
May 2003
Disclaimer
The views expressed in this academic research paper are
those of the author and do not reflect the official policy or position of the US
government or the Department of Defense. In accordance with Air Force
Instruction 51-303, it is not copyrighted, but is the property of the United
States government.
Contents
Disclaimer..................................................................................................................... ii
list of Illustrations............................................................................................... v
Executive Summary................................................................................................. vi
Introduction............................................................................................................... 1
Objectives and Structure................................................................................................. 3
Terminology and Assumptions......................................................................................... 5
The Nature of Collateral Casualties and the War in Afghanistan 8
Collateral Casualties From Air Attack.............................................................................. 8
Air Operations in Operation Enduring Freedom.............................................................. 12
Foundational Theories and Standards....................................................... 17
Ethics and the Just War Theory...................................................................................... 17
International Law........................................................................................................... 22
Why and How the United States Seeks to Avoid Collateral
Casualties and Damage.................................................................................................................... 31
National Humanitarian Values of the United States......................................................... 31
The Professional Military Ethic....................................................................................... 32
The Targeting Process................................................................................................... 34
Objectives and Guidance......................................................................................... 34
Role of Legal Advisors............................................................................................ 35
Targeting Process.................................................................................................... 37
Determination of Potential Collateral Effects............................................................. 38
United States National Interests and Views of the
International Community 42
Objectives and Guidance......................................................................................... 43
Role of Legal Advisors............................................................................................ 44
Targeting Process.................................................................................................... 45
Determination of Potential Collateral Effects............................................................. 47
The Decision Environment................................................................................... 50
Moral Tensions and Conflicts within the Targeting Process............................................. 51
Gray Areas and Danger of Bias..................................................................................... 55
Moral Decision Support for the Warfighter............................................ 59
Obstacles to Moral Decision Making............................................................................. 59
Current Decision Support.............................................................................................. 61
New Approaches to Moral Decision Support................................................................ 63
Counterpoints and Recommendations........................................................ 70
Counterpoints and Responses........................................................................................ 70
Recommendations......................................................................................................... 73
Bibliography............................................................................................................... 79
Illustrations
Figure 1. Relationships of the Moral and Legal Principles of
Just War................................... 52
Figure 2. The Moral Decision Space.................................................................................... 57
Figure 3. De-biasing Strategies Overlaid on the Moral
Decision-Space................................. 68
Executive Summary
The military and the media have focused repeatedly on the
technological advances that have increased the precision of attacks from the
air. Yet, there is also a need to examine the moral aspects of the military’s
procedures to minimize the incidences of unintentional civilian deaths and
injuries that result. These procedures support decisions that often exist in
the moral territory beyond the black-and-white bounds of legal standards, where
multiple right objectives compete for priority. In order to best win wars
while protecting innocent lives, military members involved in the targeting
decision process deserve the finest moral preparation and decision support
their nation can provide.
In Operation Enduring Freedom, the United States military
used targeting procedures that are strongly grounded in international law, but
which offer opportunities for improvement when viewed from a moral perspective
focused on the targeting decision-making process. Based on a review of this
process, the underlying international legal standards, and the Just War moral
principles, this report proposes improvements drawn from the discipline of
applied ethics and the study of judgment and decision making. The
recommendations include “morality of war” training as a companion to the
current training on the laws of war, the addition of sources of advice on
issues of morality and judgment for participants in the targeting process, and
the implementation of a program that rapidly seeks factual post-strike
information on collateral casualties in order to provide feedback to the
targeting decision makers.
Chapter 1
Introduction
Coalition aircraft [had] regularly been the target of
hostile fire from the Deh Rawod area… Gunfire from various caliber weapons was
observed throughout the day and at night, including mortars and AAA
[anti-aircraft artillery] fire… Several compounds in the Deh Rawod area were
positively identified as sources of this AAA fire. AAA fire had emanated from
these compounds on repeated occasions over the previous two days and the source
of the fires did not change. In all cases, the locations of these compounds
were such that they could range and threaten coalition ground and airborne
forces… As coalition ground and airborne forces approached the area, fire
erupted from some of the compounds. By firing, these AAA batteries established
that they were manned, armed, and operational. Their proximity to the
objectives, landing zones, and blocking positions made them a threat to inbound
coalition forces. Consequently, these sites were valid targets and AC-130 aircraft
were directed toward them.
Significant efforts were expended to ensure only the compounds that were the
sources of fire were targeted. At the first targeted compound, the apparent
location of most of the deaths and injuries, AAA fire was directed at the
AC-130 as it approached. At one location, however, the AC-130 arrived at a
target and found it to be “cold” and elected not to strike it.
The AC-130 was not able to observe the AAA weapon itself.
Rather, the ground location of the source of the fire was identified and fires
were directed to that area. Just as the weapon itself is not seen, it is also
not possible to determine if the fires from the AC-130 have damaged or
destroyed the weapon. Consequently, personnel at the weapon’s location were the
primary targets. Unfortunately, it [was] also not possible to distinguish men
from women or adults from children…
The dead and wounded later observed by coalition forces
were mostly women and children. Coalition medical personnel treated the
wounded. Four wounded children were medically evacuated by helicopter… Further,
the local Afghans maintained that most of the dead had already been buried –
although no fresh gravesites were observed.
—United States Central Command[1]
So read excerpts from the military’s official report of one
tragic incident in Oruzgan Province of Afghanistan during the ongoing United
States military air operation against the Taliban and the al Qaeda terrorists
they harbored. The civilian deaths were not intentional; the report highlights
several preliminary steps taken to avoid just such a result. However, there
have been multiple reports of attacks by the American air forces against enemy
military targets in Afghanistan that have resulted in the accidental deaths of,
and injuries to, civilians. Such incidents during war are deeply troubling, but
usually do not violate the international humanitarian laws that govern conduct
in war. Nevertheless, the United States military continues to seek out ways to
reduce these incidences of collateral casualties while also considering them an
unavoidable cost of protecting vital national interests. While much has been
done in the way of technology and procedure to minimize undesired suffering of
innocents, additional benefit is available from increasing attention to the
ethical plight of the military members making decision about targeting. This is
not only right in accordance with morality, international law, and the national
values of the United States, but it will also further its national interests.
Even combat in the name of the highest human values, such as
liberty and justice, continues to sometimes result in consequences to innocent
bystanders that appear inconsistent with those values. Such outcomes in the
course of American military operations in Afghanistan continue to pose a
particular moral dilemma for Americans, their government, and their military. A
public opinion poll in October 2002 concluded that the United States continues
to view itself as a virtuous nation that overwhelmingly acts as a force for
good around the world.[2]
This self-assessment is emphatically reflected in the ranks of the United
States military, where all members are trained and required to act legally,
especially in the midst of combat. Military members also take great pride in
their moral standards, as well as in the virtues they seek to live out. Yet in
the aftermath of the terrorist attacks against America on September 11, 2001,
some of the military strikes launched by the air forces of the United States
have been challenged on moral grounds by domestic and international critics.
Some of them seem to ask: “Given the reports of civilian casualties, was that
the right thing to do?” Both at home and abroad, the United States is being
morally judged, not just by how technologically advanced its bombs may be, nor
solely by the standards of international law, but by the rightness of its
perceived intents and motives in launching military air strikes, and especially
by the “rightness” of the consequences that result from those operations.
Objectives and Structure
This paper will analyze how the United States military
currently endeavors as a moral agent to “do the right thing” while preparing
for air strikes. While the machines of air war can be further improved, much of
the moral burden of avoiding collateral casualties and damage falls on the
military decision makers who employ them. Military members make or support many
of the decisions about where, when, and how those machines will strike. These
decisions often exist in the moral territory beyond the black-and-white bounds
of legal standards, where multiple right objectives compete for priority. It is
also the moral dimensions of accumulated individual decisions that perhaps
register the most clearly in any determination of the overall morality of an
organization—or a country. Thus, in order to win wars while protecting innocent
lives, the people of the United States desire a military that strives to attain
the highest moral standards, and military members involved in the targeting
decision process deserve the best moral preparation and decision-making tools
their nation can provide.
While the military and the media have focused repeatedly on
the technological advances that have increased the precision of attacks from
the air, the present research has examined the moral aspects of the military’s
procedures to minimize the incidences of unintentional civilian deaths and
injuries resulting from attacks from the air. The author will argue that the
United States has developed an approach that is strongly grounded in
international law, but one that offers opportunities for improvement when
viewed from a moral perspective focused on the decision-making process. These
improvements do not seek to prescribe specific standards for weighty moral
matters surrounding the issues of collateral casualties and damage. Instead,
the intent is to examine the institutional setting within which individuals
make very difficult decisions under very difficult conditions. This paper then
offers recommendations intended to better equip current and future military
specialists and leaders to consider and weigh the moral implications of the
issues they face involving the avoidance of collateral civilian casualties.
These recommendations may not only further reduce collateral casualties, but
also strengthen the moral grounding for future American military actions and
better support the national interests of the United States.
This paper begins with a brief survey of the nature of
undesired civilian death and injury resulting from wartime attacks from the
air, and then examines the goals and the characteristics of air operations in
Afghanistan in support of Operation Enduring Freedom (OEF). Following this is a
review of the moral principles and legal standards that exist, against which
the wartime actions of the United States are often compared. Next, the paper
describes the process currently employed to plan air strikes, citing as primary
sources the official doctrine, training, policy, and procedures used by the United
States Air Force and the United States Central Command, which is the joint
combatant command executing OEF. This process description is followed by
considerations from the fields of applied ethics and decision analysis as they
pertain to identifying possible issues in the decision support provided to
military members who must make very difficult moral judgments in the targeting
process. Finally, from this examination, the paper offers insights and
recommendations to improve the moral decision support provided to military
specialists and decision makers who work both to avoid unintended harm to
innocents and to pursue national objectives.
Terminology and Assumptions
There are several issues to clarify regarding some of the
terms used in this paper. “Air forces” refer to the aircraft, personnel, and
resources of the Air Force, Navy, and Marines that form the vast majority of
the fixed-wing component of the United States military. Also, this paper
assumes that the persons negatively affected by an incident of collateral
casualties or damage are innocent civilian non-combatants, hereafter referred
to as “civilians” or “innocents.” While civilians can theoretically be divided
into subcategories, with some arguably non-innocent, there will always be
innocent civilians in any conflict and they are the focus of this paper.
Although a worthy endeavor, this paper will not include an exploration of the
moral or legal complexities involved in determining a victim’s innocence or
status as a non-combatant. Furthermore, the question of effects on combatants
who have been effectively defeated or are out of action (hors de combat),
is beyond the scope of the present inquiry. The paper also addresses only the
military’s role in the decision processes described. Under the laws of the
United States, the elected and appointed civilian members of government oversee
and direct its military forces. As such, they play key roles in forming and
dictating guidance and in making critical decisions in the execution of
military operations. However, the military members must still interpret the
guidance, formulate advice for high-level decisions, and make many decisions
delegated to their level.
The author’s choice to use “collateral casualties” or
“civilian casualties” in conjunction with, or instead of, “collateral damage”
also requires explanation. “Collateral damage” is a term often used for the
group of undesired consequences resulting from a military attack and involving
either people or property. For those individuals who have lost family members
or friends in incidences of “collateral damage,” or who have been injured
themselves, the term “damage” does not seem to acknowledge the fact that there
has been a tragic loss of health or life. While the United States military has
used this term in the past, the Department of Defense frequently used the term
“civilian casualties” during OEF press briefings.[3]
In its published guidance to its legal advisors, the United States Air Force
uses references similar to and including “collateral casualties and damage.”[4]
Similarly, out of respect for those civilians who have tragically suffered and
in deference to potential sensitivities toward the use of anodyne language to
describe their travail, the author will refrain from using the term “collateral
damage” to refer to instances of civilian deaths or injuries. Sometimes
collateral damage to property, though a possible consequence of air strikes,
may not be mentioned at all in order to place the emphasis on the civilian
casualties, which carry greater moral importance.
Throughout, this paper will draw on both civilian and
military resources. Several of the official documents referenced in this paper
were written by the United States Air Force. However, while the Air Force is
the lead military service for developing technology and processes in many areas
related to air strikes, in time of war all United States military services
fight together as a joint force. This paper is written in that same spirit of
“jointness.”
Chapter 2
The Nature of Collateral Casualties
and the War in Afghanistan
The thesis of this paper requires a two-part foundation that
will be discussed in Chapters 2 and 3. Chapter 2 will first address the
complexities behind the deceptively simple term “collateral casualties and
damage” and the difficult task of ending or reducing occurrences of such harm.
Second, pertinent facts about the United States military air operations in
Afghanistan will provide context for the ensuing discussion about procedures
and decision making. Chapter 3 will then offer a survey of the moral and legal
principles and standards that motivate efforts to reduce harm to civilians that
results from air strikes.
Collateral Casualties From Air
Attack
The range of consequences associated with incidences of
undesired death and injury following an air strike can be very broad, ranging
from minor wounds to injuries that maim individuals for life, and from the
death of a single, innocent person to the loss of dozens of innocent family
members and neighbors. On the scale of time, unintended casualties and
destruction can result immediately from exploding ordnance—or days, weeks, or
years later as the result of buried, autonomous, or malfunctioning weaponry.
Some definitions of “collateral casualties” include sickness and starvation
that can result from damage to basic infrastructure or interruption of
humanitarian aid efforts in the immediate area.[5]
The international law of warfare is very clear that civilian persons who
are not actively aiding the enemy military forces must not be the objective, or
target, of any attack. When such persons are purposefully harmed as the
objective of a military operation, these acts are declared war crimes, a
category separate and distinct from that of unintended, innocent casualties.
Individuals, in addition to states, can be held accountable for these crimes
against humanity.[6]
In addition to the personal consequences to those who are
inadvertently swept up in the effects of war, civilian deaths and injuries can
also have significant effects on the nation that launched the attack and the
political objectives it is pursuing.[7]
Because of the civilian population’s suffering and the resulting perception of
injustice, pre-existing sympathies toward the United States can be lost or
hatred deepened within the country or region containing the fighting. When
media outlets flash reports of the incident around the region and the world,
the local perception of injustice can rapidly expand into broad criticism of,
and sometimes changes to, the policies and strategies in use by the nation that
mounted the attack. Those changes can potentially restrict or even cancel
future operations. One senior instructor summarized these indirect effects of
civilian casualties during a United States military training session about a
previous conflict: “We knew that no single bomb would win the war, but also
that one wayward bomb could lose it.”[8]
While the results of unintended civilian casualties can be
dire in both the personal and political dimensions, the complete elimination of
such incidents is an elusive goal. Even “precise” weapons can land at precisely
wrong locations and cause incidents of unintended suffering. Shaw has compiled
a list of eight different causes for such tragic outcomes.[9]
One of these causes, human error, can result from wrong or insufficient
intelligence. The intended target location may be hit, but not the intended
target “content.” Human error can also result from mistakes in communication,
identification, or dexterity, leading to the launch of a weapon at an incorrect
target. Another group of causes, technological failures, can occur in the
mechanical or electronic components of weapon systems, causing them to veer off
course and miss their target. Such malfunctions were the cause of the two
collateral casualty and damage incidents in October[10]
and November 2001,[11]
according to initial assessments by the United States military.
Unexpected and unnoticed civilian activity in the target’s
vicinity can mean that innocent people are caught up in the destruction
intended for the military object of the attack. This can more easily occur when
military targets are located in or near locations such as “dual use” civil
urban infrastructure that also directly supports enemy military activities.
Civilians are also placed at risk when their government intentionally attempts
to shield its military systems by placing them in neighborhoods or other places
where innocent people congregate. In such situations, a decision maker fully
expects a small number of civilians to be in or near the target area, but
sometimes judges that destroying the target is essential to winning the war
rapidly and will save many more lives in the future. This objective then
overrides his or her obligation to protect those civilian lives. (The moral and
legal issues surrounding such situations will be discussed in the next section
of the paper.) Such a wide range of possible causes and the roles of
circumstance and errors can seemingly conspire to result in multiple incidences
of civilian casualties that seem to defy attempts at their elimination.
It cannot be known with certainty which of these theoretical
causes have resulted in incidents of civilian casualties and damage in
Afghanistan during the United States air operations since October 2002. This is
due in part to the wide variance in unofficial accountings of reported
instances of civilian casualties and damage, and the limited official
government information available. With OEF still an active military operation
at the time of this writing, the United States Government has released to the
public no overall assessment and little official information concerning the
impact of specific air strikes on Afghan civilians. A United States Central
Command news release in March 2002 provided the status of ten incidents since
the start of OEF that the four-star combatant commander had determined required
review. Of these, only two were associated with possible incidents of
collateral casualties and damage due to air strikes.[12]
The command did conduct an investigation of the Deh Rawod incident described in
the opening lines of this paper. The majority of the report is classified,
although the command did release an unclassified summary.[13]
With regard to a broad picture of the overall number of
unintended civilian deaths in Afghanistan, the Department of Defense has
maintained the position that it has no estimated total,[14]
and that nearly insurmountable challenges block them from obtaining all the
necessary facts to generate an estimate.[15]
Indeed, there are numerous and significant obstacles to ascertaining the actual
harm to civilians resulting from an air strike.[16]
Frightened survivors may misperceive or exaggerate facts in their recounting of
the incident, injured people may be quickly moved to obtain medical care, and
human remains may be rapidly buried, as mentioned in the excerpt from the
military report on Deh Rawod in Chapter 1. The immediate location of the attack
and the area surrounding it may remain a highly dangerous and chaotic
environment for a lengthy period. In addition, local government reports may be
tainted by dishonest intent or poor investigation capabilities and techniques.
Most of the available reports of instances of undesired
civilian casualties and damage in OEF have come from media sources and
non-governmental organizations. These reports have not been corroborated by the
United States Government and they provide varying perspectives on the suffering
of innocents in the course of this war. Some researchers have compiled these
reports, using varying criteria for determining the trustworthiness of the
information. They have produced estimates of 1300[17]
to 2700[18]
civilian deaths resulting from both ground and air operations during the first
three months of OEF, the most intense period of military air attacks. These
estimates do not include injuries or property damage. However, these estimates
are of arguable validity. Separating fact from fiction can be very difficult
and requires judgments by the compilers as to the likely veracity of each report.[19]
This task becomes harder as distance and time separates the estimator from the
incident. As Herold warns: “Counting is not value-free.”[20]
Nevertheless, several media sources have generated
estimates. The Boston Globe estimated in February 2002 that 1000 Afghan
civilians had died as a result of air strikes up to that time.[21]
The New York Times reported in July 2002 that up to 400 civilians had died,
based on the Times’ six-month review. This review included visits to eleven
sites representing the principal locations which Afghans and human rights
groups claimed were the sites of collateral deaths of civilians.[22]
The claims from Afghanistan of collateral casualties and damage continue: a
provincial governor’s office reported the death of seventeen civilians, including
women and children, on 12 February 2003.[23]
Another tragic accident occurred on 9 April 2003 when a bomb missed its
intended target and landed on a house, killing eleven civilians.[24]
Some reports such as these can be based, at least in part, on rumor or
deception, but their overall effect is sobering because, where they are
factual, they point to incidents of personal tragedy affecting innocent lives.
Air Operations in Operation
Enduring Freedom
The objectives regarding the protection of civilians during
the war in Afghanistan were clearly stated from the outset. On the first day of
air strikes, Secretary of Defense Donald Rumsfeld emphasized that United States
military forces intended to strike only military targets.[25]
This objective and the corollary intent of minimizing loss of civilian lives
was reiterated by President Bush in his remarks to the United Nations General
Assembly the following month.[26]
This clear emphasis was complemented by the internal reputation that the United
States Central Command already possessed within the military for paying
particular attention to avoiding civilian casualties and damage.[27]
In many ways, the air forces of the United States were
better prepared in OEF than in any previous conflict to minimize collateral
casualties and damage during their air attacks. Technological advances and new
systems gave them more precise tools. The widespread and much heralded use of
the Joint Defense Attack Munition (JDAM), initially unveiled during Operation
Allied Force, the air war over Serbia, brought satellite-enhanced accuracy to
the battlefield in a new way as these weapons penetrated smoke and clouds
without loss of precision.[28]
The Department of Defense reports that fifty percent[29]
of the 21,000 bombs[30]
dropped during OEF through March 2002 were JDAMs or other precision munitions.
This was a marked increase from the previous record of twenty-nine percent
during the air war over Serbia, itself a three-fold increase over the 1991 Gulf
War.[31]
Partnered with the advantages of precision munitions were
advances in intelligence, communications, and command and control. Unmanned
aerial vehicles gave bird’s-eye views of target areas and instantaneously sent
these pictures back over satellite links to command centers and aircrews in
their aircraft[32]
—this “sensor-to-shooter” capability has been long awaited for the advantage it
offers to crews in target recognition and situational awareness. The main
command center for the air war was known as the Combined Air Operations Center.
From there each attack was planned and directed. This command center concept
had matured since its first appearance during the 1991 Gulf War. By 2001, the
center was far more capable of planning more precise strikes in advance,
integrating incoming intelligence and reconnaissance information with ongoing
air operations, and reacting swiftly and accurately to fleeting targets.[33]
In Afghanistan these improved capabilities were tested against both
conventional forces and terrorist fighters in a conflict that differed in
significant ways from a textbook battle against a traditional foe. Because of
the surprise achieved by the terrorist attacks on September 11, 2001, OEF
target development did not begin until days and weeks before the initial
strikes. During initial fighting in Afghanistan, air forces would not be teamed
with conventional infantry or armored forces, but with special operations teams
working alongside indigenous fighters. Within one week of the start of the air
war, the air forces had attacked most of the available, fixed targets.[34]
This meant that most air strikes after that point were “on call,” their crews
often taking off without knowing their exact targets. Those targets were then
relayed to them in the air, based on developments on the ground and reports
from friendly ground forces or detections by intelligence sources. This meant
that the desired timeline between notification and “bombs on target” was
sometimes very short, a condition created by both the shadowy nature of the al
Qaeda and Taliban leadership and the power of new command, control, and
intelligence capabilities. These conditions could only make the goal of
striking only military targets an even more challenging objective.
Chapter 3
Foundational Theories and
Standards
As the second portion of laying the necessary foundation for
understanding this research, Chapter 3 overviews the moral and legal principles
and standards that apply to efforts to minimize collateral casualties and
damage.
Ethics
and the Just War Theory
The field of ethics concerns itself with studying the
general nature of morals and of specific moral choices made by people as they
relate to other individuals.[35]
Coady helps to define the nature of ethics in the negative: ethics is not
1) essentially dictated by religion; 2) remote from life’s realities; 3)
entirely relative to whatever culture or society in which one finds oneself;
nor 4) concerned solely with inner, personal issues.[36]
He then goes on to emphasize that ethics is an essential component of
making any significant decision. Normative ethics theories emphasize the role
of virtues, intentions, rules, and consequences in making these determinations.
Applied ethics seeks to employ these theories to resolve practical,
controversial issues, and overlaps in some areas into the study of judgment and
decision making. This paper will draw from all of these disciplines as it
touches on the important moral principles regarding war and later seeks to
apply these principles to decisions about potential collateral casualties and
damage.
When it comes to a moral approach to limit the occasions and
the brutalities of war, the “Just War” tradition of thought describes a middle
ground in the theoretical spectrum between the extreme pacifist position that
eschews all war on moral grounds and the extreme military realist position that
rejects any role for morality in war, allowing that “anything goes” in order to
end a war as quickly as possible. The basic concept of rights and wrongs in
waging war can be traced back to antiquity,[37]
but the secular formulation of the Just War tradition, as it grew from its
roots in the church, is commonly traced through Saint Augustine, Thomas
Aquinas, Francisco de Vitoria, Francisco Suarez, and Hugo Grotius, among
others.[38]
The theory can be functionally divided into two parts: guidance for determining
the justice of going to war (jus ad bellum) and principles for fighting
justly within a war (jus in bello). It is this latter portion that is
more directly applicable to the matters of collateral casualties and damage and
thus to this paper.
While there are many analyses of the jus in bello
portion of the modern-day embodiment of the Just War tradition, there are two
principles that are commonly accepted as its classical basis: discrimination
and proportionality of means.[39]
In the general case, discrimination means the separation of individuals into
two categories: those liable to be justly attacked, and those who should be
immune from attack. Johnson defines discrimination as avoiding direct,
intentional harm to those who are not fighting--noncombatants.[40]
However, McMahan argues that the more proper criteria for discrimination may be
moral responsibility and innocence, and not the presence or absence of the
combatant’s uniform and gun.[41]
With regards to proportionality of means, Johnson describes it as the
injunction to avoid needless destruction—disproportionate damage—in pursuit of
a justified outcome.[42]
Walzer defines proportionality as the immediate and longer-term harm done by an
act in war versus the contribution of that act to victory.[43]
However, some ethicists and philosophers highlight
additional moral concepts within or underlying these two principles. The
principle of humanity, or “human rights” as stated by Walzer, forms the moral
rationale for the other principles and points to a fundamental dignity and
importance in every individual that is resistant to the demands of war.[44]
In a similar vein, Hartle defines two humanitarian principles underlying all
prohibitions against wrongful conduct in war: all persons are individuals
deserving of respect, and all human suffering should be minimized.[45]
Christopher also sees two humanitarian precepts: it is wrong to intentionally
harm innocent persons, and the individual is sometimes obligated to protect
innocent persons from harm.[46]
McMahan and McKim incorporate the concepts of humanity and discrimination into
a doctrine called “priority of the innocent” that requires priority of
consideration be given to the interests of those who are morally innocent of
responsibility.[47]
They see discrimination’s strong constraint against intentionally harming the
innocent as a corollary of this doctrine. McMahan and McKim also define a
principle of “minimal force,” specifying the obligation to use no more force
than is necessary to achieve a legitimate military aim.[48]
This principle is intended to not only prevent harm to innocent civilians but
also to preclude excessive harm to combatants. Together, the positions staked
out by these modern-day scholars highlight that humanitarian principles are
central to the morality of the Just War tradition.
In simple cases, the application of the Just War tradition
may seem straightforward. One simple example would be where a military target
is far removed from the civilian population, the target is clearly essential to
the enemy’s war effort, and an attack option exists that is appropriate for
achieving legitimate military objectives. However, simple cases are
infrequently found on the battlefield. One difficult category of cases is well
established in the Just War body of literature as falling under the doctrine or
principle of “double effect.”[49]
In general, the term “double effect” emphasizes that a single action taken with
good intent can have both good and bad consequences—the good effects are fully
intended while the bad effects are foreseen but unintended. In the case of war,
this doctrine maintains that harm to innocent civilians can be unintended,
foreseeable, and morally allowable under certain conditions. Sometimes,
military planners face a situation in which they cannot expect to successfully
discriminate between a target that is deemed militarily necessary and some
number of civilian persons that would normally be immune from harm. In striking
such a target, the planners could fully expect to achieve the good effect of
disabling or destroying the military target, while simultaneously engaging in
the bad effect of consequentially harming innocent people or their property.
What should military personnel do when faced with such a quandary? Using the
doctrine of double effect, decision makers are traditionally expected to only
proceed with the attack if: 1) the act is a legitimate act of war; 2) the
direct effect (destroying the military target) is morally acceptable; 3) the
intention of the commander is good—in other words, the bad effect (harming the
civilians) is not one of his objectives nor a means to that objective; and 4)
the good effect compensates for the bad effect under the proportionality
principle.[50]
These conditions still require tough judgment calls with
respect to the intent of the decision maker and the relative values and risks
of the anticipated good and bad effects. Intent is difficult to dissect in
practice. Glover emphasizes that what is intended and what are foreseeable side
effects are often not easily distinguished.[51]
To better ensure a defensible intention, Walzer specifies that decision makers
must pursue a double intent instead of the single intent specified in the third
condition of the double effect doctrine. Not only must decision makers not
intend the harm to the innocent, but they must also seek to minimize harm, even
at greater risk or cost to themselves.[52]
This emphasizes a “minimal harm” principle that further supports the
humanitarian principles just discussed. As a test of both the purity of intent
and the thoroughness of the proportionality assessments, Christopher adds the
injunction to decision makers that they must be equally willing to exchange the
same number of their own innocent civilians to achieve the good effect sought.[53]
This test would also serve to temper the tendency toward national partiality,
what McMahon and McKim call “one of the central unresolved problems of the
ethics of war.”[54]
They define national partiality as the strong tendency to believe that the
interests of one’s compatriots matter more than the interests of “others,”
independent of considerations of guilt or innocence. Such partiality could lead
to the undervaluing of civilian noncombatants, regardless of their innocence,
and impede a decision maker’s willingness to reduce the threat of harm to them,
especially at the cost of increased risk to his or her own forces. McMahan and
McKim do admit that some degree of national partiality may be permitted, or
even required, in war.[55]
Nevertheless, they maintain that this reluctant permission should not be
stretched into a license for much greater weight in moral considerations.
Finally, McKeogh poses questions about the fourth condition of the double
effect doctrine and the requirement to weigh the good and bad effect against
each other. He reviews the arguments on both sides for a rough versus a precise
balancing, and finds that neither is morally satisfactory. Therefore he
concludes that the doctrine of double effect is open to abuse.[56]
This very brief overview of some of the moral principles and
issues related to the task of minimizing collateral casualties and damage
provides a basic appreciation for the height and breadth of the moral
expectations commensurate with such an undertaking. The Just War tradition seems
to clearly recognize two roles for military members: warriors pursuing military
objectives and protectors separating innocent civilians from harm. Neither role
may be morally forsaken, although the tradition acknowledges that sometimes,
with great reluctance and care, the role of warrior must take priority. Using
only the broad moral principles of the Just War tradition, decision makers are
equipped with general warnings to guard their intent, to value humanity in
every form, to separate all civilians from harm, and to consider both the good
and bad effects of their planned actions—along with the acknowledgement that
all of these actions may be very difficult. However, Just War moral principles
and doctrine provide few, if any, specific guidelines to help military decision
makers value and weigh alternative choices in the very chaotic environment of
war. The next section will evaluate whether the translation of some of these
principles into international law offers more specific assistance to the decision
maker.
International
Law
Law, a body of rules governing human affairs, is the next
foundational component of the present work. One way of understanding the
relationship between law and morality is through Fuller’s characterizations of
law as the setting of a pointer on a scale between the morality of duty that
recognizes the most obvious demands of social living, and the morality of
aspiration that points to the highest reach of human ambition.[57]
He describes the morality of duty as the “blood cousin” of the judgment of law,
which condemns individuals whose behavior falls below its standards, while also
claiming that law calls individuals towards the heights of moral achievement.[58]
However, Fuller also holds that laws must be practical and are of no use if they
are not enforceable or if they create significant new problems.[59]
This description of the moral-legal relationship represents only one side of a
multi-faceted debate about the relationship of law and ethics, but it appears
to clearly depict the consistency that one finds between the moral principles
of Just War and the standards laid out in the laws governing behavior in war.
In order to limit the evils of war and to seek to protect
its victims, the world looks to a body of international humanitarian law
frequently referred to as the “law of war” or the “law of armed conflict.” It
is commonly accepted that the legal standards associated with jus in bello
are based largely on the concepts of the Just War tradition.[60]
While the majority of this body of law has historically been composed of
international agreements, common practices of states (unwritten or “customary
law”), and judicial rulings, three international treaties drawn up during the
last century have documented the bulk of the legal standards in existence
today. These documents are the Hague Conventions of 1907, the Four Geneva
Conventions of 1949, and the 1977 Protocols to these Geneva Conventions.[61]
The first of these two protocols (hereafter, “Protocol I”) is of key interest
when considering jus in bello matters and examining the legal standards
set for the assessment of a possible target and the choice of the method by
which to attack it. It should be noted that although the United States has not
ratified Protocol I, it considers the vast majority of its regulations to be
customary law and holds itself accountable to them.[62]
Part IV, Section I of Protocol I addresses the need for
protection of civilian persons and property from the effects of hostilities.
Its ties to the principles of the Just War tradition are very clear. This
portion of the protocol begins by labeling the principle of discrimination the
“basic rule” and charging its parties as follows: “In order to ensure respect
for and protection of the civilian population and civilian objects, the Parties
to the conflict shall at all times distinguish between the civilian population
and combatants and between civilian objects and military objectives and
accordingly shall direct their operations only against military objectives.”[63]
The protocol then goes on to define rules for determining who are civilians and
how they are to be protected, including the protection of objects, such as food
stocks, which are indispensable for their survival. Within these rules are
references to the principle of proportionality. Articles 50 and 57 both refer
to the obligation to avoid incidental loss to civilian life, health, or
property if such loss “would be excessive in relation to the concrete and
direct military advantage anticipated.”[64]
But Article 57 goes on to limit the permissibility of actions under the
principle of proportionality, emphasizing the need to always minimize any
incidental civilian harm that cannot be avoided, switching to alternate targets
if suitable and available, and providing advance warning of attack to civilians
at risk, whenever circumstances permit. It further charges the signatories to
“take all reasonable precautions to avoid losses of civilian lives and damage
to civilian objects.”[65]
These rules coincide with Walzer’s double-intent standard and the principle of
minimization of harm, though they stop short of Walzer’s charge to the
combatant to assume additional risk if necessary to further reduce the
potential harm to the innocent.
When writings on the law of war, especially those from military
sources, discuss the underpinnings of these laws, they tend to mention three
customary principles: military necessity, humanity, and chivalry, with
preeminence given to military necessity. Roberts and Guelff point out that this
triad, when held in appropriate balance, incorporates the principles of
discrimination and proportionality.[66]
Chivalry, a code of honorable behavior between combatants, will not be
discussed here because it is outside of the focus on effects of war on innocent
civilians. In the current documents of the law of war, it is the Fourth Hague
Convention that first defines its purpose in terms of military necessity: “to
diminish the evils of war, as far as military requirements permit.”[67]
Military necessity is cited in the Nuremberg judgments as a key criterion for
determining whether an act was a permissible act of war or a war crime.[68]
The United States Air Force operational law guide also calls military necessity
the most basic of customary law principles in the law of war.[69]
That manual defines military necessity as the principle that permits combatants
involved in armed conflict to use force or violence against persons, places, or
objects whose subjugation or destruction is indispensable to securing the
prompt submission of the enemy, with the least expenditure of resources. The
Air Force provides further explanation in the form of four supporting elements:
1. Any force used must be regulated by the user;
2. Only force necessary to achieve as quickly as
possible the partial or complete submission of the adversary is allowable;
3. The force used is no greater in effect than
needed to achieve the prompt submission of the adversary; and
4. The force used is not otherwise prohibited.
[emphases in original][70]
In describing the second customary legal principle,
humanity, the Air Force categorizes it as implicitly contained within, and
complementary to, military necessity. The guide’s definition of the principle
of humanity adds a caveat of military necessity to Walzer’s “human rights” principle:
“Grounded on a fundamental belief in the dignity and importance of each
individual, humanity in aerial warfare forbids the infliction of suffering,
injury or destruction not actually necessary for the accomplishment of
legitimate military objectives.”[71]
While Roberts and Guelff consider the law of war to be a
fine balance between the needs of military necessity and humanity, they also
recognize grounds for criticism based on the competing purposes of the laws and
reflecting tensions between considerations of humanity and military necessity.[72]
Some others do see military necessity as a convenient excuse and unequal
partner in questions concerning indirect and unintended harm to civilians.
Wasserstrom argued that under the law of war what is militarily “necessary”
easily becomes, in practice, what is militarily “useful,” and thus not a
constraint at all. He goes on to say: “Here the governing principle is that it
is legitimate, appropriate (and sometimes obligatory) to do almost anything to
anybody, provided only that what is done is reasonably related to an important
military objective. It is, in short, to permit almost all possible moral claims
to be overridden by considerations of military utility.”[73]
Cohen stakes out a different position, writing: “The notion of ‘military
necessity’ lends itself to abuse, but every use of it is not abusive. It is not
being abused if the alternative is to ask more of troops than we have any right
to ask of anyone or than anyone can deliver.”[74]
He goes on to claim that the law of war implies no obligation on the part of
the military to raise their level of risk, which is already high, in order to
reduce the risk to innocent civilians. This position was the same as that
shared in an October 2002 Air Force training lesson on the law of war.[75]
The legal community recognizes that the framework of the law
of war leaves the military member many complexities for in determining just
what is considered proportional. The committee reviewing the North Atlantic
Treaty Organization’s bombing campaign over Serbia for the International
Criminal Tribunal for the Former Yugoslavia discussed this very problem in
their formal report:
The main problem with the principle of proportionality
is not whether or not it exists but what it means and how it is to be applied.
It is relatively simple to state that there must be an acceptable relation
between the legitimate destructive effect and undesirable collateral effects.
For example, bombing a refugee camp is obviously prohibited if its only
military significance is that people in the camp are knitting socks for
soldiers. Conversely, an air strike on an ammunition dump should not be
prohibited merely because a farmer is plowing a field in the area.
Unfortunately, most applications of the principle of proportionality are not
quite so clear cut. It is much easier to formulate the principle of
proportionality in general terms than it is to apply it to a particular set of
circumstances because the comparison is often between unlike quantities and
values. One cannot easily assess the value of innocent human lives as opposed
to capturing a particular military objective.[76]
The report goes on to list some of the questions that remain
even after one has decided to apply the principle of proportionality:
1. What are the relative values to be assigned to the
military advantage gained and the injury to non-combatants and or the damage to
civilian objects?
2. What do you include or exclude in totaling your
sums?
3. What is the standard of measurement in time or
space? and
4. To what extent is a military commander obligated to
expose his own forces to danger in order to limit civilian casualties or damage
to civilian objects?[77]
As a result, the committee acknowledged that answers to
these questions would necessarily vary from case to case and could differ
depending on the experiences and the values of the decision maker. Similar
disagreement is expected in cases involving “dual use” objects—those that have
both civilian and military uses.[78]
The tribunal’s committee went on in their report to
recommend that the proportionality of good and bad effects be judged based upon
what the “reasonable commander” would decide.[79]
The Air Force advises their legal counsels that the determination of
proportionality is the sole responsibility of the commander for those decisions
not retained by higher authority. All others involved in the planning process
should offer their best advice. Legal advisors are told that the reasonable
commander criterion has been generally satisfied if the commander “can clearly
articulate in a reasonable manner what the military importance of the target is
and why the anticipated civilian collateral injury and damage is outweighed by
the military advantage to be gained.”[80]
Therefore, the international law of war is based on, but
differs in significant ways from, some interpretations of the moral principles
of the Just War tradition. The law of war defines military necessity and
assigns it a strong position compared with that of innocent lives in the
determination of proportionality. It also places certain limits on military
necessity while defining a reasonable commander standard for judging the
legality of those cases that do not clearly exceed those limits. Furthermore,
it issues no call, as Walzer did, for military members to transfer risk from
innocent civilians onto themselves in order to minimize harm. Altogether, these
pragmatic standards may assist military decision makers to make judgments of
relative risks to, and values of, progress toward victory and preservation of
innocent human lives. Still, after applying the standards of legality in war,
many of the moral quandaries are left unresolved. This issue will be revisited
after a review of national values, the military ethic, and the targeting
process.
Chapter 4
Why and How the United States
Seeks to Avoid Collateral Casualties and Damage
Given the moral principles and legal standards outlined
above, it is important to explain why the United States seeks to uphold them
and what steps it has taken to enable those planning its air strikes to
implement them more successfully. This information, in conjunction with the
moral and legal background just provided, will permit the analysis that follows
in Chapter 5. While some information about organization and procedures in use
in OEF has been described in media interviews and press conferences, the
information presented here about targeting processes is also drawn from
currently approved air operations planning doctrine and directives.
National
Humanitarian Values of the United States
The humanitarian values that the
United States holds as a nation are consistent with both the tenets of the Just
War tradition and the law of war. The worth of human individuals is a pillar in
the historical and present-day documents that guide the actions of the United
States. The founding document of the United States, the Declaration of
Independence, sets out life, liberty and the pursuit of happiness as inherent
rights of all people.[81]
The fundamental document of United States law, the Constitution, sets out to
secure justice, liberty, and equality as natural moral rights for the
individual.[82]
The 2002 National Security Strategy of the United States of America calls for
it to fight for human dignity, liberty, and justice as right and true
principles for all people everywhere. In fact, the document states that the
strategy it details must start from these core beliefs.[83]
President Bush clearly linked the current war against terrorism to these
values: “America will lead by defending liberty and justice because they are
right and true and unchanging for all people everywhere. No nation owns these
aspirations, and no nation is exempt from them… But America will always stand
firm for the non-negotiable demands of human dignity….”[84]
In December 2001, an anonymous senior defense official emphasized the bottom
line of how these values apply to the accepted conduct of the United States
military in war: “Our mores in America are, we don’t kill innocent people. We
have extreme sensitivity to that.”[85]
With respect to the legal standards of international law,
the United States Constitution gives treaties made under the government’s
authority the force of domestic law.[86]
The Department of Defense Law of War Program recognizes the force of applicable
customary law as well.[87]
Furthermore, the government’s policy, set forth by the Chairman of the Joint
Chiefs of Staff and applicable to all armed forces personnel, is that they must
comply with the law of war in every armed conflict, independent of the form of
the hostilities.[88]
The Law of War Program also dictates training in the law of war for every
military member upon entry into the armed forces, annually, and at professional
military schools. The Air Force Deputy Chief of Staff for Air and Space
Operations summarized one benefit of this program in March 2002: “Continuous
exposure breeds a culture sensitive to minimizing human suffering and loss.”[89]
It is clear that in the eyes of the military the United States has an
unequivocal commitment to upholding the law of war.
The Professional Military Ethic
Hartle has composed a list of eight principles that
represent the standards of personal behavior that military members feel they
ought to meet.[90]
The Air Force,[91]
Army,[92]
and Navy and Marines[93]
each have their own list of character values to which they expect their members
to always hold. The values called out by the individual military services are
all represented in letter or in spirit by Hartle’s list, which follows:
Professional soldiers
1. Accept service to country as their watchword and
defense of the Constitution of the United States of America as their calling.
2. Place their duty first. They subordinate their
personal interests to the requirements of their professional functions.
3. Conduct themselves at all times as persons of honor
whose integrity, loyalty, and courage are exemplary. Such qualities are
essential on the battlefield if a military organization is to function
effectively.
4. Develop and maintain the highest possible level of
professional knowledge and skill. To do less is to fail to meet their
obligations to the country, the profession, and fellow soldiers.
5. Take full responsibility for the manner in which
their orders are carried out.
6. Promote and safeguard, within the context of mission
accomplishment, the welfare of their subordinates as persons, not merely as
soldiers.
7. Conform strictly to the principle that subordinates
the military to civilian authority. They do not involve themselves or their
subordinates in domestic politics beyond the exercise of basic civil rights.
8. Adhere to the laws of war and the regulations of
their service in performing their professional functions.[94]
What is perhaps most noticeable about these principles is
that they do not overtly mention either the humanitarian or the military
objectives laid out in the previous discussion of decisions of proportionality.
While they may be assumed to be primarily applicable to the military’s task of
application of force, they also apply to the task of separating innocent civilians
from harm, as specifically directed by the eighth principle pointing to the
international law of war.
The Targeting Process
Every person who participates in the process of planning air
strike targets is clearly charged with understanding and upholding the
applicable law of war.[95]
This includes all military members from the most senior commander to the lowest
ranking intelligence imagery analyst. The multidisciplinary process that they
follow is known as the “targeting cycle.” It is focused by the objectives
passed through the military commander and is designed to achieve specific
effects with minimum risk, time, and resources.[96]
The team that implements the process consists of members from all the military
services, representing specialties in command and control, intelligence,
weapons, law, strategy, and tactics—all organized under an air-component
commander who reports directly to the commanding general. They all “run the
cycle” for targets that are planned well in advance and for those that appear
unexpectedly, requiring commanders to strike quickly. In the latter case, the
cycle can be highly modified depending on the level of risk that the commander
is willing to accept.[97]
The following sections will highlight key portions and aspects of the process:
objectives and guidance, the role of legal advisors, the targeting process, and
determination of potential collateral effects.
Objectives and Guidance
The targeting cycle begins with the commander’s objectives
and guidance, which are based solidly on the broader guidance provided by his
or her civilian leaders, the President and the Secretary of Defense. This
ensures from the outset the close coupling of military and political goals. One
form of guidance is known as the “rules of engagement.” For each conflict, the
President and the Secretary of Defense approve rules of engagement to guide
applications of force by the military.[98]
The purpose of these self-imposed rules is to define when, where, why, how, and
against whom the military may use force and to ensure that those acts are, at
all times, in pursuit of national policies and objectives. Rules of engagement
may restrict certain targets, particular areas, or the use of specific weapons
in order to gain or maintain public support, avoid escalating hostilities, or
accomplish other objectives.[99]
These rules may also reemphasize portions of the law of war, as the summary
statements from the rule set provided to United States soldiers in the 1991
Gulf War make clear: “Fight only combatants – Attack only military targets –
Spare civilian persons and objects – Restrict destruction to what your mission
requires.”[100]
Rules of engagement are normally considered classified information until
sometime after a conflict has ended. For this reason, the United States Central
Command has declined opportunities to speak publicly about the rules of
engagement that apply in Afghanistan.[101]
However, it has been reported in the media that one rule in OEF restricts
forces from damaging bridges or road infrastructure in order to facilitate reconstruction
efforts afterwards and maintain Afghan support for the war.[102]
The scope and importance of the role played by rules of
engagement in air warfare has grown significantly in recent years. A senior
legal counsel for the Chairman of the Joint Chiefs of Staff estimates that nine
out of ten restrictions on today’s battlefield are political versus legal.[103]
This means that the number and complexity of such restrictions can become
unwieldy, difficult to track, and tricky to distribute when they change. Military
manuals offer suggestions to help address these problems, encouraging close
monitoring of dissemination, quality control to keep them as simple,
transparent, and as seamless as possible, and methods for training staffs and
aircrews.[104]
Role of Legal Advisors
The Department of Defense mandates that legal advisors are
to be immediately available at every level of command in order to ensure
compliance with the law of war.[105]
The Air Force further directs that legal advisors be involved in every division
and team implementing the targeting cycle and that they also advise on
compliance with rules of engagement.[106]
However, the legal advisors’ primary task is to provide counsel on the
compliance of operations planning and execution with the large and complex body
of international law.[107]
Despite criticisms that it was the legal advisors making the “strike/no-strike”
decision in certain cases in Afghanistan,[108]
the military commanders retain this responsibility, although they may rely
heavily on the counsel of their legal advisors in doing so.[109]
Indeed, it has been the experience of the Air Force legal
community that commanders will initially be too cautious and pass up the
opportunity for some attacks because of their lack of familiarity with the
international law of war and its content on the legitimacy of targets.[110]
The Air Force defines a proactive role for legal advisors in its instructions
for the operation of the Combined Air Operations Center: “to employ legal
expertise and resources to control and exploit the legal environment across the
full spectrum of operational missions.”[111]
While taking their role in minimizing collateral casualties and damage very
seriously, the Air Force legal community believes that overly restrictive
constraints on targeting will end up prolonging suffering by extending the war
and delaying victory.[112]
Additionally, a legal advisor cannot always definitively state whether a
target, or the means of attacking it, is legal under international law. This
may leave military decision makers in what Schmitt calls the “warfighter’s
dilemma.”[113]
This quandary arises from the vagueness of the law and the infinite possible
variations of circumstances, combined with the inability of the decision
makers’ staffs to reliably predict the exact outcomes of air strikes.
Targeting Process
Among the numerous activities that are part of the targeting
cycle, of particular importance to this discussion are the approaches the
planning staffs and decision makers use to research the target, determine the
proper weapon with which to attack it, and assess the collateral effects that
would likely occur in such an attack. The full resources of the United States
intelligence community are available to help planners pull together as much
information as needed to identify and characterize each target. Planners are
encouraged by Joint doctrine to go outside their headquarters to access a broad
spectrum of expertise and data to understand the target, its environs, and how
it supports the adversary’s military operations.[114]
During operations in Afghanistan, daily conferences using secure video links or
computer networks continue to bring together intelligence experts from around
the world to review target information.[115]
Integral to this process of identifying targets is the certification that they
are indeed legitimate targets under international law and the current rules of
engagement.
Central to this process is also a clear understanding of the
effects desired from striking a particular target or target set. “Effects-based
targeting” is the name used by the United States military to describe its focus
on understanding what specific results are desired from an attack. These
results can range from complete destruction of the target to denial of access
by the enemy for a limited time period. This analysis of effects is also
required to assess delayed or displaced indirect consequences, to include
unintended effects on civilian persons or objects.[116]
With these desired and undesired effects in mind, experts, called “weaponeers”
by the Air Force, next begin work to find the optimal match between the target
and weapon. United States Central Command and the Department of Defense
recently outlined in a press conference some of the numerous parameters they
can vary to optimize this match.[117]
Weaponeers consider early in this process whether they may be able to propose a
non-lethal or non-kinetic means to achieve the required effect at the target.
If using an explosive weapon, they could alter the azimuth from which the
weapon approaches the target or the aim points on the target to direct
fragments in, or away from, a particular direction. Similarly, less powerful
bombs or fuses that delay detonation until after impact can help to limit the
lethal radius of an attack. Carefully selecting the time of the attack can
greatly impinge on both the desired effects and the undesired consequences of
an attack. Finally, precision-guided weapons using laser designation or
satellite signals offer greatly improved accuracy over the unguided,
gravity-drop bombs.
The planning of a notional strike against military artillery
pieces parked in an urban schoolyard brings together many of these elements. If
the artillery was a sufficiently important target, weaponeers might choose one
or more smaller laser-guided bombs over the larger satellite-guided JDAM to
limit the radius of the blast. They could plan the strike to occur at night
when students and teachers would not occupy the school and fewer passersby
would be exposed. The planners might also select the direction of approach for
the attacking aircraft and bombs so that weapons straying from their intended
path would be less likely to strike homes in the area. Together, these
specifications could greatly reduce the risk to the civilians in the target
area while offering an excellent chance of achieved the desired effect of
destroying the military targets.
Determination of Potential
Collateral Effects
Running parallel to these target development and
weaponeering tasks is a multiple-tier joint methodology for accessing the likelihood
and amount of collateral casualties and damage. This approach was developed by
the Joint Staff beginning in 1998[118]
and used extensively in OEF.[119]
An iterative process, the tier assessment consists of four step with a rating
of high or low risk of collateral casualties and damage assigned at each step.
The assessment begins with all the information gathered about the target and
draws a ring around the target that would contain the effects of most
conventional weapons in the United States inventory. If there are no collateral
casualty or damage concerns, the target receives a rating of “low.” However,
if there are issues raised, then the target proceeds to the next assessment
tier. Here, weaponeers vary parameters like those discussed above to seek to
avoid or limit the collateral effects. If they are unsuccessful, the target is
modeled using a rapid, two-dimensional tool nicknamed “Bugsplat” after the
pattern it produces, which resembles a squashed insect. This model, which shows
the likely “footprint” of the weapon effects in the target area, is able to be
run quickly, in only five to ten minutes.[120]
If this tool does not clear up any remaining collateral casualty or damage
concerns, then a higher fidelity, three-dimensional model is used. It takes
into account the physical characteristics of the structures involved[121]
and even the potential range of effects from windows shattering due to the
attack.[122]
However, what this model offers in detail it requires in time—taking a minimum
of four hours to return results, rendering it impractical for immediate
decisions.[123]
If the collateral effects issues still remain after exhausting the resources of
these assessments, the target is rated “high” and passed to the Secretary of
Defense and President for a decision.
One parameter that has not been openly discussed by the
military is the threshold of collateral casualty and damage issues that
differentiates between ratings of “low” or “high.” A February 2003 media
interview of Air Force officials provides some insight into the fact that a
“low” rating does not equate to the absence of these collateral effects. In
that interview, one official explained that in the event of war in Iraq the
President would decide about striking any targets in which the estimates of
civilian deaths exceeded “several dozen.”[124]
This threshold would likely vary depending on the conflict, the target, and the
rules of engagement. The likelihood that such a limit exists is an issue that
will be further discussed in Chapter 6.
The tier assessments are only mathematical predictions and
are intended to serve only as aids to commanders and the legal counsel advising
them.[125]
Yet, they offer a new, powerful tool that augments the target development and
weaponeering skills so critical to the targeting process. Altogether, the
military personnel, the process, and the technology have produced some
tremendous successes in precision air strikes in Afghanistan. One example,
briefed at a Pentagon press conference, occurred in downtown Kabul when a bomb
was dropped on a building where an al Qaeda meeting was taking place. The
location of the meeting was destroyed, but the adjacent buildings were left
undamaged.[126]
Together, these tools, advisors, and ideals are additional inputs available to
military decision makers faced with difficult decisions concerning potential
collateral casualties and damage.
Chapter 5
United States National Interests
and Views of the International Community
Every person who participates in the process of planning air
strike targets is clearly charged with understanding and upholding the
applicable law of war.[127]
This includes all military members from the most senior commander to the lowest
ranking intelligence imagery analyst. The multidisciplinary process that they
follow is known as the “targeting cycle.” It is focused by the objectives
passed through the military commander and is designed to achieve specific
effects with minimum risk, time, and resources.[128]
The team that implements the process consists of members from all the military
services, representing specialties in command and control, intelligence,
weapons, law, strategy, and tactics—all organized under an air-component
commander who reports directly to the commanding general. They all “run the
cycle” for targets that are planned well in advance and for those that appear
unexpectedly, requiring commanders to strike quickly. In the latter case, the
cycle can be highly modified depending on the level of risk that the commander
is willing to accept.[129]
The following sections will highlight key portions and aspects of the process:
objectives and guidance, the role of legal advisors, the targeting process, and
determination of potential collateral effects.
Objectives and Guidance
The targeting cycle begins with the commander’s objectives
and guidance, which are based solidly on the broader guidance provided by his
or her civilian leaders, the President and the Secretary of Defense. This
ensures from the outset the close coupling of military and political goals. One
form of guidance is known as the “rules of engagement.” For each conflict, the
President and the Secretary of Defense approve rules of engagement to guide
applications of force by the military.[130]
The purpose of these self-imposed rules is to define when, where, why, how, and
against whom the military may use force and to ensure that those acts are, at
all times, in pursuit of national policies and objectives. Rules of engagement
may restrict certain targets, particular areas, or the use of specific weapons
in order to gain or maintain public support, avoid escalating hostilities, or
accomplish other objectives.[131]
These rules may also reemphasize portions of the law of war, as the summary
statements from the rule set provided to United States soldiers in the 1991
Gulf War make clear: “Fight only combatants – Attack only military targets –
Spare civilian persons and objects – Restrict destruction to what your mission
requires.”[132]
Rules of engagement are normally considered classified information until
sometime after a conflict has ended. For this reason, the United States Central
Command has declined opportunities to speak publicly about the rules of
engagement that apply in Afghanistan.[133]
However, it has been reported in the media that one rule in OEF restricts
forces from damaging bridges or road infrastructure in order to facilitate
reconstruction efforts afterwards and maintain Afghan support for the war.[134]
The scope and importance of the role played by rules of
engagement in air warfare has grown significantly in recent years. A senior
legal counsel for the Chairman of the Joint Chiefs of Staff estimates that nine
out of ten restrictions on today’s battlefield are political versus legal.[135]
This means that the number and complexity of such restrictions can become
unwieldy, difficult to track, and tricky to distribute when they change.
Military manuals offer suggestions to help address these problems, encouraging
close monitoring of dissemination, quality control to keep them as simple,
transparent, and as seamless as possible, and methods for training staffs and
aircrews.[136]
Role of Legal Advisors
The Department of Defense mandates that legal advisors are
to be immediately available at every level of command in order to ensure
compliance with the law of war.[137]
The Air Force further directs that legal advisors be involved in every division
and team implementing the targeting cycle and that they also advise on
compliance with rules of engagement.[138]
However, the legal advisors’ primary task is to provide counsel on the
compliance of operations planning and execution with the large and complex body
of international law.[139]
Despite criticisms that it was the legal advisors making the “strike/no-strike”
decision in certain cases in Afghanistan,[140]
the military commanders retain this responsibility, although they may rely
heavily on the counsel of their legal advisors in doing so.[141]
Indeed, it has been the experience of the Air Force legal
community that commanders will initially be too cautious and pass up the
opportunity for some attacks because of their lack of familiarity with the
international law of war and its content on the legitimacy of targets.[142]
The Air Force defines a proactive role for legal advisors in its instructions
for the operation of the Combined Air Operations Center: “to employ legal
expertise and resources to control and exploit the legal environment across the
full spectrum of operational missions.”[143]
While taking their role in minimizing collateral casualties and damage very
seriously, the Air Force legal community believes that overly restrictive
constraints on targeting will end up prolonging suffering by extending the war
and delaying victory.[144]
Additionally, a legal advisor cannot always definitively state whether a
target, or the means of attacking it, is legal under international law. This may
leave military decision makers in what Schmitt calls the “warfighter’s
dilemma.”[145]
This quandary arises from the vagueness of the law and the infinite possible
variations of circumstances, combined with the inability of the decision
makers’ staffs to reliably predict the exact outcomes of air strikes.
Targeting Process
Among the numerous activities that are part of the targeting
cycle, of particular importance to this discussion are the approaches the
planning staffs and decision makers use to research the target, determine the
proper weapon with which to attack it, and assess the collateral effects that
would likely occur in such an attack. The full resources of the United States
intelligence community are available to help planners pull together as much information
as needed to identify and characterize each target. Planners are encouraged by
Joint doctrine to go outside their headquarters to access a broad spectrum of
expertise and data to understand the target, its environs, and how it supports
the adversary’s military operations.[146]
During operations in Afghanistan, daily conferences using secure video links or
computer networks continue to bring together intelligence experts from around
the world to review target information.[147]
Integral to this process of identifying targets is the certification that they
are indeed legitimate targets under international law and the current rules of
engagement.
Central to this process is also a clear understanding of the
effects desired from striking a particular target or target set. “Effects-based
targeting” is the name used by the United States military to describe its focus
on understanding what specific results are desired from an attack. These
results can range from complete destruction of the target to denial of access
by the enemy for a limited time period. This analysis of effects is also
required to assess delayed or displaced indirect consequences, to include
unintended effects on civilian persons or objects.[148]
With these desired and undesired effects in mind, experts, called “weaponeers”
by the Air Force, next begin work to find the optimal match between the target
and weapon. United States Central Command and the Department of Defense
recently outlined in a press conference some of the numerous parameters they can
vary to optimize this match.[149]
Weaponeers consider early in this process whether they may be able to propose a
non-lethal or non-kinetic means to achieve the required effect at the target.
If using an explosive weapon, they could alter the azimuth from which the
weapon approaches the target or the aim points on the target to direct
fragments in, or away from, a particular direction. Similarly, less powerful
bombs or fuses that delay detonation until after impact can help to limit the
lethal radius of an attack. Carefully selecting the time of the attack can
greatly impinge on both the desired effects and the undesired consequences of
an attack. Finally, precision-guided weapons using laser designation or
satellite signals offer greatly improved accuracy over the unguided,
gravity-drop bombs.
The planning of a notional strike against military artillery
pieces parked in an urban schoolyard brings together many of these elements. If
the artillery was a sufficiently important target, weaponeers might choose one
or more smaller laser-guided bombs over the larger satellite-guided JDAM to
limit the radius of the blast. They could plan the strike to occur at night
when students and teachers would not occupy the school and fewer passersby
would be exposed. The planners might also select the direction of approach for
the attacking aircraft and bombs so that weapons straying from their intended
path would be less likely to strike homes in the area. Together, these
specifications could greatly reduce the risk to the civilians in the target
area while offering an excellent chance of achieved the desired effect of
destroying the military targets.
Determination of Potential
Collateral Effects
Running parallel to these target development and
weaponeering tasks is a multiple-tier joint methodology for accessing the
likelihood and amount of collateral casualties and damage. This approach was
developed by the Joint Staff beginning in 1998[150]
and used extensively in OEF.[151]
An iterative process, the tier assessment consists of four step with a rating
of high or low risk of collateral casualties and damage assigned at each step.
The assessment begins with all the information gathered about the target and
draws a ring around the target that would contain the effects of most
conventional weapons in the United States inventory. If there are no collateral
casualty or damage concerns, the target receives a rating of “low.” However,
if there are issues raised, then the target proceeds to the next assessment
tier. Here, weaponeers vary parameters like those discussed above to seek to
avoid or limit the collateral effects. If they are unsuccessful, the target is
modeled using a rapid, two-dimensional tool nicknamed “Bugsplat” after the
pattern it produces, which resembles a squashed insect. This model, which shows
the likely “footprint” of the weapon effects in the target area, is able to be
run quickly, in only five to ten minutes.[152]
If this tool does not clear up any remaining collateral casualty or damage
concerns, then a higher fidelity, three-dimensional model is used. It takes
into account the physical characteristics of the structures involved[153]
and even the potential range of effects from windows shattering due to the
attack.[154]
However, what this model offers in detail it requires in time—taking a minimum
of four hours to return results, rendering it impractical for immediate
decisions.[155]
If the collateral effects issues still remain after exhausting the resources of
these assessments, the target is rated “high” and passed to the Secretary of
Defense and President for a decision.
One parameter that has not been openly discussed by the
military is the threshold of collateral casualty and damage issues that
differentiates between ratings of “low” or “high.” A February 2003 media
interview of Air Force officials provides some insight into the fact that a
“low” rating does not equate to the absence of these collateral effects. In
that interview, one official explained that in the event of war in Iraq the
President would decide about striking any targets in which the estimates of
civilian deaths exceeded “several dozen.”[156]
This threshold would likely vary depending on the conflict, the target, and the
rules of engagement. The likelihood that such a limit exists is an issue that
will be further discussed in Chapter 6.
The tier assessments are only mathematical predictions and
are intended to serve only as aids to commanders and the legal counsel advising
them.[157]
Yet, they offer a new, powerful tool that augments the target development and
weaponeering skills so critical to the targeting process. Altogether, the
military personnel, the process, and the technology have produced some
tremendous successes in precision air strikes in Afghanistan. One example,
briefed at a Pentagon press conference, occurred in downtown Kabul when a bomb
was dropped on a building where an al Qaeda meeting was taking place. The
location of the meeting was destroyed, but the adjacent buildings were left
undamaged.[158]
Together, these tools, advisors, and ideals are additional inputs available to
military decision makers faced with difficult decisions concerning potential
collateral casualties and damage.
Chapter 6
The Decision Environment
The excellent hardware, software, and procedures available
today provide options in the targeting process that were not available
previously. Yet, the improvements have not altered the fact that, ultimately,
United States military members are charged with the responsibility of advising
and deciding rightly concerning the risk of collateral casualties and damage.
Thus far, this paper has discussed multiple considerations that military
decision makers and their staffs should consider in targeting: moral
principles, legal standards, national humanitarian values, political
objectives, the rules of engagement, and the professional military ethic. They
also have legal advisors and a well-defined targeting process with built-in
assessments of collateral effects to assist them. However, the “decision
environment” in which these public servants find themselves is a very complex
one with regard to the guidance and considerations they must weigh. It is also
an environment filled with physical, mental, and emotional stress, in addition
to what the military calls the “fog of war”—the uncertainty that results from
the lack of adequate, correct information. To more fully understand the
challenges faced by these military members, one must also explore the tensions
and conflicts inherent in their considerations and the biases that may be
present within the decision process.
Moral
Tensions and Conflicts within the Targeting Process
Identifying moral tensions between these considerations is
the first step to further improving an understanding of the military member’s
decision environment. This discussion begins with a brief exploration of the
inherent tensions between the moral and legal principles overviewed in Chapter
3. These tensions will then be used to frame potential conflicts between
considerations for military members in making targeting decisions.
The principle of proportionality discussed in Chapter 3
identified a primary tension between the obligation to achieve the political
aims of the war and the obligation to protect the innocent in the course of
fighting the war. This tension rises to the forefront of moral considerations
in the targeting process. While it is true that the obligation of protecting
the innocent functions as a constraint on the objective of achieving the
political aims, it is such a strong constraint that it justifies nearly equal
consideration. The resulting inherent tension becomes a full-blown conflict in
the troublesome case of double effect when complete discrimination between the
military target and civilians is not possible and harm to innocents is likely
in the course of an attack. Neither the tension of proportionality nor the
conflict of double effect is easily resolved or even greatly simplified by
applying the concepts of Just War or the standards of the international law of
war. However, these concepts and standards do describe the pieces that
contribute to tension and conflict and the basic relationships between them.
For example, while the discussion of Just War explored the moral principle of
humanity, it was the overview of international law that named its antagonist:
military necessity. In determinations of proportionality, it is the principle
of humanity that gives value to the innocent civilians and military necessity
that gives value to the military target.
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Figure 1. Relationships of the Moral and Legal Principles
of Just War
This relationship is illustrated in Figure 1 by a balance in
which the basic rule of discrimination supports the beam of proportionality.
Attached to this beam are the principles of humanity and military necessity, in
turn supporting their respective “objectives” of innocent civilians and the
military target. Protecting the innocent civilians is the shield of the
principle of minimal harm taken from Walzer’s ideas. Limiting the attack on the
military target is the principle of minimal force. This analogy breaks down if
one erroneously infers that anything done to achieve the desired effects on one
side will automatically work against the objective on the other. In fact, the
relationship between the two sides is far more complex than perhaps any figure
can properly illustrate. Yet, the picture does clearly convey the tension or
conflict that exists between these two objectives.
To further understand how these sometimes-competing
objectives might be weighed in the mind of military decision makers, it is
necessary to enumerate the factors that may weight those objectives. The United
States national humanitarian values that perceive life, liberty, and justice as
moral rights for all individuals are at work to protect innocent civilians. These
national values may be further amplified by the personal values held by the
decision maker. The strength of these values should not be underestimated, but
neither should the support for attacking the military target brought on by the
factors found in the concepts of military doctrine and strategy.
Military doctrine is the collected “best practices” of
military operations, built up and tested through the long history of warfare.
Nine concepts called the “principles of war.” form the bedrock of this doctrine.[159]
Of these nine, the principles of mass, economy of force, security, and surprise
stand out as particularly important considerations in situations where
collateral casualties and damage are concerns. The principle of mass means that
the employment of various weapons and techniques will be concentrated so they
will decisively achieve the desired outcome. The principle of economy of force
calls military leaders to be judicious in applying their forces and resources
to ensure that sufficient amounts are available to achieve mass at the needed
places and times. The principle of security means that risk will be managed
prudently to reduce the vulnerability of one’s own forces to hostile acts or
surprise and to preserve combat power. Finally, the principle of surprise
allows the military to catch the enemy unprepared by striking at an
unanticipated time or place, or in an unexpected manner.
Strategy can be understood as the means by which the
objectives for the conflict will be achieved. The task of building a successful
strategy is sometimes referred to as “operational art” and consists of multiple
elements.[160]
Three elements of importance to this paper are leverage, timing, and tempo.
Leverage speaks to attaining and maintaining the military advantage over the opponent.
Timing and tempo both impact the placement and employment of forces on a
schedule and at a pace that best exploits their capabilities while appearing
unpredictable to the adversary and inhibiting the enemy’s action. These
military concepts, along with others, must be considered by the military member
who is in the position of offering advice or making decisions in the course of
the targeting cycle.
These doctrinal and strategic concepts carry with them the
emphasis provided by years of military field experience, professional military
education, and individual professional thought and discussion. Also, many
military members do not see these factors as completely inconsistent with the
principle of humanity. As the Air Force reminds its legal advisors, victory
must be valued as a humanitarian goal in itself, or the United States military
should not be there in the first place.[161]
Indeed, the injunctions to seek mass, economy of force, security, and surprise,
and to use, plan for, and act to maintain leverage, timing, and tempo are all
intended to ensure victory. However, even if both the objectives of protecting
civilians and attacking the military target are described in humanitarian
terms, they remain differentiated by the timeframe of their humanitarian
results. Civilian lives preserved will pay immediate benefits that can be
easily foreseen. Lives saved by favorably and quickly ending the war are
accrued over time, dependent on subsequent decisions and circumstances, and
thus much more difficult to calculate.
Conflicts are also evident between the tenets of military
strategy and doctrine and the principles of Just War and standards of the law
of war. The act of issuing warnings to civilians, as conditionally directed by
international law, can work against the military desire for surprise. The
previously mentioned call by Walzer for the military to take on additional risk
in order to lower the risk to innocents can be diametrically opposed to the
principle of security that seeks to lower the risk to one’s own forces. The
need to pull a high-demand, low-inventory weapon out of reserve and use it on a
target because of collateral effects issues can run counter to the idea of
economy of force. The desire to lower the destructive effects of an attack to
reduce the risk to civilians can fly in the face of the need to mass effects on
a critical military target. The additional time required searching for an
attack option that sufficiently addresses concerns about collateral casualties
and damage can derail a plan that seeks to orchestrate the timing and tempo of
its operations in order to maintain leverage over the adversary. Similarly,
this issue of time could also be used to drive the tier assessment process to
achieve a prudential threshold of “acceptable” civilian casualties instead of a
morally optimal minimization of harm to innocents.
Gray
Areas and Danger of Bias
This exposition of the conflicts facing military decision
makers further describes the murkiness of the moral gray area in which they
find themselves. Schmitt describes this zone of grayness as existing “between
unmistakably lawful and the unambiguously unlawful conduct.”[162]
Kidder quotes Lord Moulton, who called this region of human behavior “the
domain of obedience to the unenforceable.”[163]
It is within this zone that determinations of proportionality must be made,
determinations that McKeogh maintains are, by their nature, easily abused.[164]
For this reason, Schmitt asserts that angst over target selection is healthy,
in that it fosters congruency and balance between the demands of law, policy,
and effective conduct of combat operations.[165]
But such congruency and balance would be even more difficult to obtain if there
are biases imbedded in the decision environment. McMahan and McKim warned of
one such prejudice when they highlighted the issue of national partiality as
previously discussed under the Just War moral tradition in Chapter 3. Such a
bias could unfairly weight the objective valued by military necessity. The
inherent value of innocent human lives at risk would be reduced by the degree
of partiality shown to the members of the decision maker’s own country. Yet, as
McMahan and McKim acknowledged, some amount of national partiality might even
be permissible and even required in war. One possible reason for such
permission is the need to promote and protect morale within the military ranks.
However, such considerations of morale could rapidly pose moral
problems if the loyalty between military members impeded their view of the
strong moral claims of innocent civilians to life and justice. This issue
emphasizes why biases in the targeting decision environment must be
acknowledged in order to improve the opportunities to promote impartial
judgment and “do the right thing.”
The academic discipline of decision analysis, based on the
psychology of judgment and choice, offers valuable information about biases in
a decision process. A rigorous application of this discipline is beyond the
scope of this paper, but important insights of a general nature can assist in
further understanding the military decision maker’s task. Fischhoff offers a
rationale for why identifying biases is important: people will work harder on
an important problem when they recognize both that judgment is central to the
problem’s outcome and that bias could pose fallibilities in that judgment.[166]
As to where to look for biases, Hogarth asserts that they may correspond to
what people can do well.[167]
This insight means that some of the potential for bias among decision makers in
the military may point right back to the fundamentals of military doctrine and
strategy. Collectively, these fundamentals speak to a knowledge base with which
military decision makers are comfortable and skilled—what they “do well.”
Individually, the applicable principles of war and of
operational art previously listed could arguably be considered to be natural
biases toward the objective of military necessity for the military decision
maker. These would compound the potential bias of national partiality already
identified as favoring that same objective. Recalling the Air Force
observations mentioned in Chapter 4 that new commanders tend to err on the side
of being overly cautious and bypassing “legal” targets, the biases towards the
humanitarian concerns could be said to include both national and personal
humanitarian values. Figure 2 depicts this murky environment as a moral
“decision space” in which the risk to the objectives in conflict is shown on
each axis. The ideal solution, posing least risk to both the protection of
innocents and the achievement of war objectives is a single point in the upper
right-hand corner of the space. Pushing toward this ideal is the military
member’s dual moral roles as described at the end of Chapter 3: warrior and
protector. All other decisions fall elsewhere in the space, favoring one
objective over the other, increasing the risk to one or both objectives, or a
combination of effects. Opposing efforts to achieve these two objectives is the
physical, mental, and emotional stress, as well as the “fog of war.” The
decision makers’ biases work to skew the decision to one objective or the
other.
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The graphic is not intended to judge what is a bad or good proportionality
decision, but simply to identify more clearly the competing objectives, the
relative risks, and the factors potentially weighting or biasing the decision
toward one objective or the other. Describing the
Figure 2. The Moral Decision
Space
decision environment in this way is only the first step toward offering the
military decision makers better moral decision support in the midst of their
warfighter’s dilemma.
Chapter 7
Moral Decision Support for the
Warfighter
Given the difficulties of the proportionality decision that
are still left unanswered by the approaches thus covered, it seems clear that
military decision makers could benefit significantly from additional decision
support targeted at these issues. Left unaddressed, biases could lead these
military members directly into one of several traps in their moral thinking. It
is important to outline some of the more likely pitfalls, and some current and
new approaches to helping military members avoid them.
Obstacles
to Moral Decision Making
The Josephson Institute has defined one set of common
obstacles to moral decision making, of which three are particularly applicable
to the targeting process.[168]
The first obstacle is the rationalization: “If it’s necessary, it’s moral.” In
this case, that rationalization leads to the false assumption that military
necessity breeds propriety. The second obstacle is the “false necessity trap,”
in which necessity is treated as a fact versus an interpretation. Here the cost
of further reducing collateral casualties is overestimated, while the cost of
failing to do so is underestimated. The last obstacle is, “If its legal and
permissible, it’s proper.” This is a rationalization that assumes that one may
substitute legal requirements that set minimal behavior standards (such as in
Fuller’s “morality of duty”) for personal moral judgment. While the necessary
and legal option may indeed be an individual’s moral choice as well, the
obstacles above point to possible pitfalls on the path to doing the right
thing—pitfalls the military decision maker should be equipped to avoid.
Glover, in his moral and psychological review of significant
acts of war in the last century, asserts that there are multiple dangers posed
in the wartime environment to an individual’s two moral resources: human
responses and moral identity.[169]
He assesses that the human responses of respect and sympathy are difficult to
maintain at any significant strength in a war involving great distances between
the decision makers and the attack. This long-range separation is inherent in
many air strikes, and especially so for the planning staffs and senior leaders
that prepare and send the aircraft on their missions. A reduction or absence of
respect and sympathy echoes the warning of national partiality introduced in
Chapter 3 and discussed in Chapter 6 as a source of bias. This threat to moral
resources is particularly insidious because it is driven by an inherent
characteristic of attack from the air—distance.
If human responses are so easily suppressed in attacks from
the air, Glover maintains that moral identity can also be neutralized, but in
complex ways similar to the Josephson Institute’s obstacles to moral decisions.[170]
Glover describes moral identity as the way that an individual cares about being
one kind or a person or another. At the core of this identity are moral commitments,
such as respect for loyalty or an abhorrence of cruelty. There are three ways
that Glover specifies that the protections of moral identity can be eroded:
moral inertia, fragmentation of responsibility, and the moral slide of
precedents.[171]
First, institutional momentum can translate into moral inertia. This can occur
when decisions are made and justified based on specific circumstances, yet are
not reevaluated when those circumstances change. Participants can find it much
less troubling to their moral identity to continue the established targeting
policy rather than to question it or to press for a new policy. Second, so many
people can have a role in a decision that no one feels particularly
responsible. While this seems inconsistent with the military’s defined role of
“commander,” Glover provides an example in which even a past President of the
United States felt that others in his administration dictated a portion of his
options. Thus, the targeting process, headed by military commander and supported
by a very large staff, might also be susceptible to this eroding influence.
Third, successive decisions can slide by degrees from slight, but justifiable,
harm to devastating impacts that never would have been countenanced if
evaluated alone. Each successive targeting decision could establish a precedent
that is, in turn, used to assist in justifying the next decision. While all of
these three “neutralizers” can operate in any wartime decision environment,
they are particularly likely to occur in those situations where threats are
imminent and ideals are at risk.
Current
Decision Support
Operating within this setting of conflicting principles and
potential biases and working to oppose breakdowns in moral resources are three
related mechanisms: the professional military ethic within each military
member, the law of war training provided regularly to them, and the counsel
available from military legal advisors. Together these mechanisms make similar
contributions to the decision environment surrounding issues of collateral
casualties and damage.
The professional military ethic as described by Hartle does
not specifically mention either of the objectives held in tension under the
concept of proportionality: the protection of innocents and the achieving military
objectives. However, individual military members will not necessarily view the
ethic’s principles as neutral or equally applicable to both the humanitarian
and military necessities. For example, “do your duty” can be easily viewed as
supporting either or both of these concerns. Yet, the professional military
ethic does share a very clear tie to both the law of war training program and
the role of military legal advisors: all are directly associated with the
interpretation of the international law of war. Since it is the legal community
in the military that interprets these laws and instructs other military members
about them through the law of war training program, legal advisors play a
particularly key role in this decision environment. How they interpret
international law can have a significant effect on the actions and
considerations considered “right” under the professional military ethic and
within the law of war training program. Therefore, whatever role the collective
legal advisors play in assisting decision makers to negotiate both the legal
and moral issues inherent in the proportionality principle, it is likely to be
strongly reflected in the implementation of the military ethic and training on
the law of war. Yet despite their current and generally competent roles in
moral issues, counseling on issues of morality that exceed legal and political
guidance—those that lay in Moulton’s domain of the unenforceable—is not a
principal duty for legal advisors in the targeting process. The primary expertise
of these advisors is in legal matters.
Nevertheless, the inherent tensions and conflicts, the
potential biases, and the possible obstacles to moral decisions in the
targeting process are significant, but may be deemed manageable in the
emotions, chaos, and stress of a war that the United States is winning. America
has grown accustomed to the character and training of its military members
enabling largely good and right decisions, but both America and its military
have also become accustomed to victory. One question that cannot be answered
with certainty is whether the level of preparation of military members for
facing the altered character of moral challenges is adequate for war that they
appear to be losing. The seemingly docile nature of the conflicts, biases, and
obstacles discussed above could easily become more tyrannical in a conflict
that is not going favorably and that may even appear to threaten the loss of
the objectives for which the war is being fought. United States military
doctrine recognizes multiple factors that have historically led to the
commission of war crimes. Several of these conditions are consistent with wars
that are difficult to fight and win: high friendly losses; high turnover rate
in the decision-making hierarchy; lack of a clearly defined adversary; and high
frustration level among military personnel.[172]
The United States military also recognizes that combat
operations can become much more morally challenging in coming years as
adversaries increasingly try to take advantage of the fact that the United
States military will always seek to comply with the law of war.[173]
Positioning high-value military targets in civilian neighborhoods is one form
of this immoral and illegal tactic seen in several recent conflicts. An upsurge
of such practices could place warriors in greater moral dilemmas than ever. In
that case, reliance on current decision support resources that emphasize legal
and political requirements may not be sufficient to meet the demand.
New
Approaches to Moral Decision Support
The first new step in guarding against the threat of
unethical decisions is to acknowledge and address the possibilities of bias in
the decision process. Determining what are biases and what are legitimate
considerations requires some amount of personal moral analysis. However, it may
also be possible to use concepts from decision analysis to assist in guarding
against prejudices in a more general way. Edwards and von Winterfeldt offer
four strategies for de-biasing decision processes.[174]
These strategies are: 1) Warn of the problem; 2) Describe the problem; 3)
Provide personalized feedback; 4) Train extensively. In addition, these authors
also point to the importance of intellectual tools in de-biasing decision
making. Together, these ideas offer opportunities to assist the military
decision maker.
Beginning with the de-biasing strategies of warn, describe,
and train, one can envision possible changes to the law of war training program
and the real-time advice made available to decision makers in the course of
making their judgments. Law of war training could be altered to include
alerting military members to the factors that could bias their judgment in
future proportionality decisions. These potential biases would not only be
listed (“warn”), but discussed in terms of how they relate to the sometimes
opposing objectives of protecting innocents and achieving the war’s military
aims (“describe”). The moral decision-space diagram would serve as a training
aid for these presentations. Case studies would be used in the training to
provide important exposure to the complexity of the decision environment and
the power of the potential biases. Reflection on cases from recent history
would be particularly useful, especially if accompanied by feedback on the actual,
known outcomes.
Such training could help in the period prior to actual
military operations, but once the targeting cycle is in full swing for planning
and execution, no decision maker will have the time to spend in a classroom or
even individual training sessions. Here, the actions of warning, describing,
and even on-the-job training would have to fall to a trusted advisor or team of
advisors skilled in the application of ethics and decision-making principles to
real world situations. Schmitt agrees that there may be a role for ethical
specialists in the targeting cycle.[175]
He describes the possible role of these moral advisors as working side-by-side
with legal advisors toward the common goal of conducting operations
rightly—neither unlawfully nor unethically. Thus both training and counsel from
advisors would focus on the practical moral and decision-analysis aspects of
the decision process. This type of collaboration could greatly benefit military
members participating in the targeting cycle.
The last of Edwards and von Winterfeldt’s strategies,
“Provide personalized feedback,” would require that the Department of Defense
take a different position than that publicly acknowledged regarding post-strike
fact-finding. As mentioned in Chapter 2, the United States Government has
stated that it does not seek to comprehensively track collateral casualties and
damage. This position is reflected in the unclassified Joint[176]
and Air Force[177]
directives that address combat assessment, the post-strike phase in which
efforts are made to determine the weapon’s actual effects. The process of
combat assessment seeks to determine whether the target must be struck again or
whether effectiveness models and planning parameters require updating. These
directives do not contain any mention of collateral casualty or damage
assessment or reporting procedures.
Whether such assessments and reporting have already been
directed and take place within classified channels, or whether the Department
of Defense must focus new effort in this area, these determinations would be
absolutely essential to permit feedback to occur. Such an assessment has taken
place in at least one high-profile incident during OEF. The United States
military announced the morning after the air strikes on Deh Rawood that a
fact-finding team consisting of military representatives and representatives of
the Afghan government, the American embassy, and the media would be conducting
an immediate on-site assessment.[178]
Making this type of information rapidly available whenever possible to the
staff involved in the targeting cycle is critical to short-circuiting potential
biases. Hogarth states in his study of “continuous processes” that feedback is
central in aiding people to adapt to decision environments of this type.[179]
In particular, he highlights the importance of the speed and frequency at which
the feedback becomes available, and the accuracy and trustworthiness of the
information provided.[180]
In the midst of the furor of competing and conflicting considerations, the
military decision maker deserves the benefit of the most accurate and timely
feedback available concerning the effects of recent air strikes on innocent
civilians.
Edwards and von Winterfeldt also assert that intellectual
tools can play an important role in dispelling what they call “cognitive
illusions.”[181]
Such tools exist in the area of applied ethics in the form of tests. One of the
more common tests is known as the “Washington Post Test.” Hedhal advocates this
test for use by military personnel in particular because of its emphasis on the
public servant’s obligation to maintain the public’s trust.[182]
Implementing the test requires the users to ask themselves: “What decision
would I make if I knew that my actions would be on the front page of tomorrow’s
Washington Post?”
Another test, referenced in the literature, is called here
the “virtual substitution test.” The basis for this tool was previously
mentioned in Chapter 3 as Christopher enjoined decision makers not to strike a
target and place innocent civilians at risk unless the decision makers were
willing to substitute their own innocent civilians for those at risk. This tool
would specifically guard against the bias of national partiality. Taking the
tool to the next level, decision makers would virtually substitute civilians
that the decision makers know personally (acquaintances, friends, family), in
order to guard against other biases, such as insufficient time or resources
that might unfairly weight the cause of military necessity. These biases could
lead to premature conclusions that the military target is “worth” a certain
number of civilian lives simply because the identities of the civilians were
unknown to the decision maker. Kidder offers third tool, testing for “trilemma”
options.[183]
This tool helps the decision maker faced with a moral quandary by not
forcing a choice between two similarly “right” options, but by prompting the
question: “Is there a third way through this dilemma?” Military members using
this tool would be acting responsibly by seeking a better way to meet both of
the competing objectives in a proportionality decision. They would also be
acting in accordance with Article 57 of Protocol I that enjoins military
decision makers to consider alternate, suitable military targets if doing so
will help minimize harm to innocent civilians. The “trilemma” tool along with
the other strategies discussed here is overlaid in the moral decision-space
depicted in Figure 3.
The potential existence of these biases and the proffering
of strategies to acknowledge and address them is not an assertion or inference
that military members are weak in virtue. To the contrary, the senior leaders
with which the author has personally served have been of outstanding moral
character. However, the biases just identified are a natural product of the
decision environment and the humanity of the decision makers. The combination
of the pressures and high-stakes of the wartime decision environment,
Figure 3. De-biasing Strategies
Overlaid on the Moral Decision-Space
the moral-legal tensions and
resulting conflicts, and the well-trained, but fallible, human beings making
the decisions are unavoidable factors. It is precisely because these factors
are inescapable that the human decision makers deserve the highest quality
decision support that can be made available to them.
Chapter 8
Counterpoints and Recommendations
Some arguments can be justifiably made against the moral
considerations advocated in the preceding section. In particular, two major
objections will be discussed here. Following these come several recommendations
arising from the insights developed through this work and intended for
consideration by senior defense policy makers.
Counterpoints
and Responses
Possible problems are inherent in encouraging military
members to go beyond legal and political checks to consider the role of
morality in their recommendations and decisions. Criticism from unnamed “Air
Force officials” has argued that both the complexity of approval processes and
the weight given to avoiding civilian casualties were excessive and may have
prolonged the war in Afghanistan.[184]
These officials pointed out that opportunities to strike suspicious, fleeting
targets might have killed top al Qaeda and Taliban leaders within a month of
the start of OEF and negated the need to introduce ground troops and expand the
war. One officer is quoted as saying: “The whole issue of collateral damage
pervaded every level of the operation. It is shocking, the degree to which
collateral damage hamstrung the operation.”[185]
If indeed the additional moral considerations advocated by this paper would
exacerbate this problem in the targeting process, some might believe they are
not be worthwhile, as indicated in the following article.
In a recent professional journal, three authors formally
responded to the objections of the unnamed Air Force officials quoted by Ricks.
Each of the respondents disagreed with assertions that these efforts to avoid
collateral casualties and damage were wrong. Schmitt argues that these unnamed
officials had forgotten that war is a “delicate dance” involving politics, law,
ethics, and combat effectiveness, among other factors.[186]
He maintains that complaints of excessive interference in the targeting
approval process are rarely justified because the approval authorities must
track risk of many types—not just military risk. Kashnikov, drawing from his
knowledge of the Russian conflict in Chechnya, noted that the political
restrictions and limitations, like those lamented by the unnamed Air Force
officials, are what keep a limited conflict from sliding down the slippery
slope into total war devoid of humanitarian concern.[187]
He also asserted that whenever humanitarian issues in war are determined by
what the weapons technology is or is not capable of doing, then those fighting
the war are on that slope. Westhusing emphasized the importance of decision
makers seeing and understanding “the big picture” and taking into account not
just military efficiency, but the potential costs of innocent deaths and the
effect of the military action on Islamic opinion.[188]
Together, the three responses of Schmitt, Kashnikov, and Westhusing claim that
there is far more at stake in the targeting process than hitting or missing the
target. Their arguments support the claim of this paper that it is vitally
important to prepare military decision makers morally as well as legally in
order to address these decisions.
A second counterpoint to the inclusion of moral training is
the argument that the legal standards of international law have been worked out
to be reasonable and enforceable, and are sufficient without additional moral
considerations. As mentioned in Chapter 3, Fuller saw a clear tie between
morality and law, but advocated that law is only useful if it can be enforced
without creating new problems. He argued that trying to set the “pointer” of
law above the minimum standards of the morality of duty was commonly advocated,
but a mistake.[189]
Cohen similarly argued that in very difficult situations there is only so much
that people can be reasonably expected to do. He maintains that asking more
than that is wrong. It seems certain that one result would be frustration and
overload. Why should anyone propose further burdening military members with
considerations beyond the legal ones?
The argument for “reasonableness” in the standards expected
for military decision makers may hold for the legal thresholds of permissible
behavior. Indeed, the recommendations stemming from the research do not propose
changes to the law of war. But legal actions may not always be morally
satisfactory ones and therefore this paper has focused on moral judgment and
decision making. As Fuller himself said, laws “can create the conditions
essential for a rational human existence. These are the necessary, but not the
sufficient conditions for the achievement of that end.”[190]
Decision makers can and should be better informed of which moral conflicts
exist in their decision environment, why they exist, and how their associated
biases can be minimized. They should also be alerted to the potential of other
traps in their moral thinking. This information will not alter the military
members’ accountability under international law, but will better prepare them
to address important moral issues within and beyond the legal dimensions of the
dilemmas they must face.
Recommendations
The purpose of this discussion has not been to define what
is reasonable, although that word is significant in the law of war. In
Chapter 3 of this paper, the “reasonable commander” criterion was described as
the legal standard for proportionality decisions. Article 57 of Protocol I
enjoined the signatories to “take all reasonable precautions to avoid losses of
civilian lives and damage to civilian objects.”[191]
However, this discussion has been focused on finding ways to help military
decision makers and those who advise them to be better able to reason
with moral matters firmly in mind. Making moral decisions can be likened to
decision makers picking their way along a narrow, craggy ridgeline between two
abysses. The following recommendations are intended to assist military decision
makers and their staffs by working to identify the moral-equivalent of
potholes, loose rocks, and blind alleys along that thin path and by providing the
best preparation possible so these military members can traverse it
successfully.
To this end, the Air Force, Joint Staff, or Office of the
Secretary of Defense should convene an ethics advisory panel comprised of
ethicists, legal counsel, specialists in judgment and decision making, and
experts in targeting and command and control. Authorities in ethics, law, and
judgment and decision making should be drawn from both the military sector and
from the best-qualified scholars and practitioners in the civilian sector. This
panel should formally review the moral aspects of the decision process embodied
in the targeting cycle and the approach currently used to prepare participants
in this process. They should begin by considering the recommendations listed
here. The panel’s own expert recommendations would serve as the template for
changes to better support the military decision makers and their staffs as they
seek to minimize collateral casualties and damage and the negative effect of
these occurrences on the national interests of the United States.
Recommendation #1: Create standardized “Morality of
War” training materials that clearly acknowledge the moral roots, especially
the principle of humanity, behind the legal standards of international law. The
training may be distinct from, but should be linked to, the law of war training
program and should emphasize the following:
a. The moral force behind the dual roles of the military
member in the targeting process: protectors separating innocent civilians from
harm and warriors pursuing military objectives.
b. The conflicts between considerations in the targeting
process and the potential biases of the decision makers. Particularly emphasize
the threat of partiality in judgments that would prematurely favor military
necessity over the lives of innocents.
c. The strategies available to check for, and work against,
whatever biases may exist. These strategies would include moral advice,
feedback, and tools or tests.
d. The possible pitfalls in moral thinking that pose direct
threats to “right” targeting decisions. Drawing from the Josephson Institute,
these include rationalization of necessity, false necessity, and
rationalization of legality. Added by Glover are neutralization of human
responses, moral inertia, fragmentation of responsibility, and the moral slide
of precedents. Particularly pertinent to this recommendation, Glover emphasizes
that moral identity is not a fixed resource, but can be strengthened through
thought and discussion, both worthy objectives of the training proposed here.[192]
e. Case studies from actual air strikes that capture the
considerations at the time the decision was made, the rationale used to make
the decision, and the outcome, to the extent it is known.
f. Accurate descriptions and photographs of the target areas
after air strikes, highlighting not only the gun camera footage of bombs
striking with amazing accuracy, but also including the unintended harm suffered
by civilians (with Recommendation #2 making this information more easily available).
This component of the training should be focused on helping airmen maintain the
human responses of sympathy and respect that Glover warns are likely to be lost
over time when attackers cannot see the direct results of their actions.[193]
Recommendation #2: Dedicate United States Government
resources to rapidly obtaining and integrating information associated with
incidents of reported collateral casualties and damage. While a trustworthy
picture of the harmful effects to civilians after such a strike will be
difficult to obtain, these effects must be accurately characterized as soon as
possible. This information should then be immediately provided to the military
decision makers and their staffs for consideration in the ongoing targeting
cycle. A group of specialized teams drawing from the Department of Defense,
Department of State, and other government offices would likely be necessary to
perform these fact-finding surveys. If sufficient government resources cannot
be dedicated to this morally critical task, consideration should be given to
crafting workable partnerships with selected media and non-governmental
organizations who also want to determine the facts in these incidents, although
they may have very different motivations for this quest.
Recommendation #3: Provide additional sources of
expert ethics and judgment advice to the staffs and commanders that implement
the targeting cycle. Where the responsibility for targeting decisions rest with
the responsible commanders, they remain the determining authority for what
resources they want to use in making those decisions. However, the complex
moral decision environment described here calls for the availability of
additional resources focused on the issues raised in this work. Such a resource
might be dedicated, trained experts assigned to full-time command and control
staffs or available to deploy when requested. These advisors should be provided
specialized training in applied ethics, judgment, and decision making—a
distinctly different role from that formally assigned to the legal advisors.
This approach offers the primary advantage of advisors who are sensitized to
the moral tensions and conflicts in the targeting decision process and who are
dedicated to watching out for threats to moral decisions and helping decision
makers avoid them. These ethics and judgment advisors would not supplant the
authority of the commander, but offer expert counsel just as legal advisors do.
Such a dedicated source of moral advice would be greatly appreciated in a
future conflict that is not proceeding smoothly and poses increasingly complex
ethical dilemmas along with great pressure for moral compromise. The distinct
disadvantages of this approach of dedicated advisors are the hiring of
additional staff and the creation of a training program to equip them to offer
well-founded and pertinent advice from these critical, but complex
perspectives. An alternate approach that would help address these concerns
would be enhancing and expanding the training already provided to legal
advisors and expanding their formally assigned duties beyond advising on legal
matters. While some legal advisors may already seek to fill this need, the
formalization of these duties would require additional training and education
to standardize the equipping of all the legal counsels. This would add
additional strain to this already heavily burdened corps of professionals and
might compromise their legal advisory duties. Whatever option is selected, the
morality and judgment advisors could also help oversee the Morality of War
training program mentioned in the first recommendation above.
In addition to these three recommendations, the current work
has raised important questions that should be investigated in future research.
The first question arises from a need to better define the role of national
partiality in modern day warfare. How has that role changed in the past
century? Also, what are morally permissible levels of national partiality and
why? A second question focuses further on the role of post-strike feedback.
What are the moral responsibilities of the United States Government to provide
to the national or world populace an assessment of collateral casualties and
damage following an individual air strike or post conflict? The third issue is
a more thorough investigation of how to best accomplish additional moral
training for military decision makers. What would be effective, efficient, and
feasible approaches and mechanisms that would produce useful knowledge and
practical skills in moral decision making in the course of planning air
strikes?
The primary recommendations resulting from this work would
not be easy or inexpensive to implement. However, the moral force of the
national values and military ethic of the United States, the international law
of war, and, most importantly, the lives of innocent civilians—wherever and
whenever war is waged—all call for the careful consideration of these insights
and proposals. Principles and cautions from ethics and judgment and decision
making provide different and important lenses through which to view the very
difficult issues posed in the targeting process. More fully incorporating these
concepts decision makers and, in the final analysis, may contribute to making
wars of the future less costly in terms of innocent lives.
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