Foundational Theories and Standards

As the second portion of laying the necessary foundation for understanding this research, Part Three gives an overview of 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 conduct in 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 a combatant 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] Thus, although the foundations of jus in bello may be described as resting on two principles, there are significant variations as to what those principles mean.

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 not only to prevent harm to innocent civilians but also to preclude excessive harm to combatants. While the positions staked out by these modern-day scholars raise various points of view, they all 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 uncomplicated 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 proceed with the attack only 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 clearly depicts 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, although 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 largely 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, quoted here:

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

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 argues 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 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?

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 does, 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.

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